Preamble

The House met at Half past Two o'Clock

PRAYERS

[Mr. SPEAKER in the Chair]

PRIVATE BUSINESS

COVENTRY CORPORATION BILL [Lords]

Read the Third time, and passed, with Amendments.

SALFORD CORPORATION BILL [Lords]

(King's Consent signified)

Bill read the Third time, and passed, with Amendments.

BIRMINGHAM CORPORATION BILL [Lords]

As amended, considered; to be read the Third time.

BRITISH TRANSPORT COMMISSION ORDER CONFIRMATION BILL

Considered; to be read the Third time Tomorrow.

Oral Answers to Questions — EDUCATION

Independent Schools (Inspection)

Mrs. Florence Paton: asked the Minister of Education (1) if he is aware of the increasing number of private-house schools; whether his regulations make it necessary for any person setting up a school in a private house to notify the local education authority; and to what extent these schools are responsible to the local education authority;
(2) if he is satisfied that children attending private-house schools are receiving the proper physical and mental training; and to what extent he undertakes inspection of these schools to ensure the adequacy of the conduct and conditions of such schools;
(3) whether the register of independent schools which he proposes to keep under

Section 70 of the Education Act, 1944, has yet been compiled.

Mr. Skeffington: asked the Minister of Education whether he is yet in a position to inspect private schools.

The Minister of Education (Mr. Tomlinson): Part III of the Education Act, 1944, which provides for the registration of independent schools, is not yet in operation and I cannot say when it will be. I am, however, considering whether, as an interim step, I can introduce some measure of inspection of these schools under my existing powers.

Mrs. Paton: Is my right hon. Friend aware that in one small area in my division no fewer than six of these schools are open, holding boo children; and that the Parents' Association are very alarmed at the rapid growth of these schools and feel that something should be done at once to supervise and to inspect the buildings?

Mr. Tomlinson: If I can, under my present powers, implement the suggestion which I have made—I agree about the necessity of it—I will do all I can to speed it up.

Mrs. Leah Manning: Will not my right hon. Friend get into touch with the local authorities and ask their health departments to inspect these private houses in respect to sanitation and the general health of the children, even though it might be some time before the inspection in ordinary subjects can take place?

Mr. Tomlinson: That is not my responsibility, which is to call the attention of the local authorities to the facts. If they consider that children are not receiving adequate education they can prosecute under the Act as it stands.

Mr. Lipson: Is not the right hon. Gentleman aware that independent schools are made necessary by the fact that there are not enough places in the ordinary schools for the children?

Mr. Tomlinson: I would not accept that. What I would accept is that that position may arise in certain instances. That is one of the reasons why it is impossible at the moment to implement Part III of the Act.

Mr. Morley: Can my right hon. Friend say the reason for the delay in bringing


Part III of the Act into operation, seeing that there is no capital expenditure involved?

Mr. Tomlinson: There are two or three reasons, adequate reasons too. One is that it would involve a large increase in the number of inspectors, if this job is to be properly done. The second is that it would be necessary to call into being a tribunal for schools found to be unsatisfactory, where we refused to register. The third reason is that if we close these schools at the moment because they are not satisfactory, there are not materials and labour available to make them adequate to our requirements.

Sir Waldron Smithers: Is not the Minister aware that the more private schools there are, free from his control, the better for the children of this country?

Mrs. Paton: Is it not the case that any person without any qualification whatever and in any kind of building can open a private school? Does not my right hon. Friend think that that ought to be stopped?

Mr. Tomlinson: It is so, but it is also incumbent upon local authorities to proceed under the Act of Parliament if children are not receiving adequate education.

Public Schools (Admissions)

Commander Noble: asked the Minister of Education whether he is satisfied with the working of the scheme to admit boys nominated by local authorities to public schools.

Mr. Tomlinson: It is too soon to assess the success of a scheme which is still in its early stages.

Commander Noble: Can the Minister say whether these nominations depend on the merits of the boys or whether hardship has to be proved?

Mr. Tomlinson: The various local authorities are making arrangements with regard to these transfers and those arrangements vary according to the authorities concerned. In some instances hardship is involved and in other cases it is not. Quite a number of varying reasons are given for the transfers.

Mr. Eric Fletcher: Can the right hon. Gentleman say how the numbers nominated by the local authorities compare with the places offered by the public schools?

Mr. Tomlinson: Yes, Sir. This year it would appear that out of some 580 places which have been offered, 155 have been taken up. In addition to that I ought to say that a number of local authorities are making their arrangements direct. The 155 are through the Ministry's Committee on Boarding Education.

Mr. Wilson Harris: Even making allowances for that, will not the right hon. Gentleman agree that this is rather an unsatisfactory situation when there are schools which have offered places two years in succession and no boys have been provided by the Ministry or the local authorities?

Mr. Tomlinson: I would like to point out that before hon. Members come to the conclusion that this is unsatisfactory, they should remember that we are altering a principle which has been regarded as unsatisfactory in itself all the time it has been in existence.

Mr. Boyd-Carpenter: The right hon. Gentleman has referred to the different criteria in respect to applicants, applied by different local authorities. Has he given them any guidance as to the correct attitude to adopt, in the view of his Department?

Mr. Tomlinson: We have attempted to guide them. I have sent out a circular, and I will send the hon. Member a copy.

Mrs. Manning: Does not the right hon. Gentleman think that these results, which have now become patent to everybody, show how false were the conclusions arrived at by the Fleming Committee?

Mr. Gallacher: It is better than their having to go to school in bare feet.

Women's Training Colleges (Places)

Mr. Ralph Morley: asked the Minister of Education how many intending women teachers who applied for places in September of this year in training colleges and university departments had been unable to gain admission.

Mr. Tomlinson: The Clearing House organised by the Association of Teachers in Training Colleges and Departments of Education, with which most of the training colleges co-operate, has on its books the names of 2,250 women candidates who have so far been unable to secure places. There are from 200 to 250 further vacancies for which some of these candidates are being or will be considered.

Mr. Morley: Does my right hon. Friend realise the perplexity of these young women when they see advertisements in the educational Press urging young women to become teachers and read reports of eloquent speeches made by my right hon. Friend also urging them to become teachers, and yet they cannot get a place in a training college in the country? What is my right hon. Friend doing about it?

Mr. Tomlinson: If those young women had read the eloquent speeches of the hon. Member's right hon. Friend they would not be in the state about which he speaks, because the 2,250 candidates waiting for admission for whom no place can be found this year are in addition to those who have been accepted and are being trained. In order to relieve anxiety, I have pointed out to all the applicants that they can be considered for next year. We are speaking not about the emergency training colleges but about the permanent colleges. These are for young girls coming out of school who want to go direct into college. We have doubled the provision for next year, and there is a hope that all the suitable candidates will be accepted next year.

Comprehensive Schools

Mr. Morley: asked the Minister of Education how many local education authorities have included comprehensive secondary schools in their development plans; and what is likely to be in the future the number of scholars attending such schools as a percentage of those receiving secondary education.

Mr. Tomlinson: This information could only be obtained by a special examination of all the development plans received. I cannot undertake this at present.

Mr. Morley: Can my right hon. Friend say what steps his Ministry are taking to encourage the formation of comprehensive secondary schools, seeing that

that is part of the programme of the Labour Party and the T.U.C.?

Mr. Tomlinson: I think I can say that I have not taken any steps to encourage local authorities to put forward a certain type—comprehensive, technical or any other schools. What I have asked is that they should consider those forms of organisation in the best interests of the development of education and submit their plans.

Miss Bacon: Does not my right hon. Friend consider it in the interests of the children that these schools should be definitely encouraged and not just tolerated?

Mr. Keeling: asked the Minister of Education whether he will name the three areas of Middlesex in which experimental comprehensive schools are to be set up.

Mr. Tomlinson: The schools will be at Potters Bar, Hillingdon and Hayes.

Mr. Keeling: Will the Minister give an assurance that no more comprehensive schools will be set up in Middlesex until the result of this experiment is seen?

Mr. Tomlinson: No.

Mr. Keeling: Does that mean no assurance or no more schools.

Mr. Tomlinson: I will not give the assurance.

Sir W. Smithers: On a point of Order. Is it not more polite, Mr. Speaker, for the Minister to say, "No, Sir"?

Mr. Tomlinson: No, Sir.

Mr. Piratin: Is the right hon. Gentleman aware that this initial step which has been taken by the Middlesex County Council is giving great pleasure to many parents in Middlesex who are very worried about the difference in standards—in particular, social standards—between the grammar schools and the so-called ordinary secondary schools?

Mr. Cove: Is it not the case that every public school in this country—Eton, Harrow and so on—is a comprehensive school, and that there is therefore no need for the experiment?

Mr. Tomlinson: I do not think we can settle this matter on the basis of question and answer.

Maintenance Allowances

Mr. George Thomas: asked the Minister of Education the number of local authorities in England and Wales who are giving maintenance allowances to secondary grammar school pupils; whether he is satisfied that there is uniformity of grant payment through the country; and whether he is satisfied that the payments made are sufficient to enable pupils in need to continue their education.

Mr. Tomlinson: No figures are available on the first part of the Question but it is known that the great majority of local education authorities make such allowances. Each authority frames its own arrangements for the purpose and my approval is not required either to the amounts of the grants or the income scales governing their award. Some variation is therefore to be expected. I have the whole question of these allowances under review and hope shortly to make recommendations to authorities.

Mr. H. D. Hughes: Is my right hon. Friend aware that at the end of this education year parents will be considering whether or not they can afford to allow their children to stay on for another year? Will he therefore speed this up and see that a review takes place in time?

Mr. Tomlinson: I am hoping to meet that position.

School Broadcasts

Mr. Geoffrey Cooper: asked the Minister of Education what number of schools, given as a percentage, have good modern broadcast receivers and adequate broadcast receivers, respectively; what number have inadequate or no broadcast receivers to enable them to take the fullest advantages of the school broadcasts made by the B.B.C.; and what steps does he propose to take so that all schools are provided with adequate broadcast receivers at an early date.

Mr. Tomlinson: I have no complete figures, but I understand that about 15,000 schools of all kinds are on the register of the School Broadcasting Council. According to a recent estimate made by the Council, reception is unsatisfactory in about 30 per cent. of the schools. I am in close touch with the Council, who have already taken steps to bring to the notice of local education and school

authorities the need for installing adequate equipment.

Mr. Cooper: In view of the fact that it has been estimated that a very considerable proportion of schools have not got adequate receivers and in view of the very excellent school programmes which are broadcast and the fact that there is no shortage of receivers, will my right hon. Friend take vigorous steps to see that something is done to improve the situation?

Mr. Tomlinson: I intimated that I have done that.

Headmaster, Essex (Pension)

Mrs. Leah Manning: asked the Minister of Education whether, in view of Circular 170, he will reconsider his decision not to count for pension purposes the services of an Essex headmaster at the Bishop Cotton School, Simla, from 1911–1914 and consequently his subsequent service as a commissioned officer in His Majesty's Forces from 1914–1919, about which particulars have been sent to him.

Mr. Tomlinson: No, Sir. I have written to my hon. Friend about Mr. A. F. Joseph.

Mrs. Manning: Is my right hon. Friend aware that this headmaster is losing £100 a year from his pension as a result of his attitude and that if this gentleman had been born a little later than he was he would not have been penalised in this way?

Mr. Tomlinson: No, Sir. I am not penalising this individual because he was born later but, he did not come under the scheme.

County Colleges

Mr. Osborne: asked the Minister of Education when he expects to start building the new county colleges; how many will there be; where situated; and what is the estimated total cost in building and equipping.

Mr. Tomlinson: I am sending the hon. Member a copy of Circular 133, issued in March, 1947. In preparing their schemes of Further Education, local education authorities are also considering the needs of their areas for county colleges. Until


these schemes and plans have been received and considered, it is impossible to reach a conclusion on the points raised.

Mr. Osborne: While congratulating the Minister on his scheme, may I ask him if he can assure the House that materials will not be used for building these colleges until the housing needs of the people have been dealt with adequately?

Mr. Tomlinson: That is not a question for me.

Mr. Osborne: But it is an important question.

Examination Fees, Wales

Mr. G. Thomas: asked the Minister of Education what representations he has made to local education authorities in Wales concerning fees charged for the examination of pupils by the Central Welsh Board.

Mr. Tomlinson: The fees charged by the Central Welsh Board for the examination of pupils in Welsh intermediate schools are subject to my approval. I have consulted the local education authorities on a proposal submitted by the Board that these fees should be increased, and have recommended them to agree.

Mr. Thomas: Do I understand from my right hon. Friend that pupils will be called upon to pay this higher fee, or that the local authority will itself meet the cost of the increased fee which he suggests?

Mr. Tomlinson: I would not like to be definite, but I think it is the local authority.

Mr. Thomas: May I ask my right hon. Friend, if he is satisfied eventually that it is not the local authority, to take steps to see that an increase in educational fees in the Principality of Wales receives no further encouragement from his Department?

Mr. Tomlinson: That is a hypothetical question, but I will consider it.

Teachers (Emergency Training)

Sir W. Smithers: asked the Minister of Education what obligations he is under to the approximately 10,000 male teacher students whose training has been

deferred; whether it is proposed to pay them compensation for the loss which they will incur from the delay; and how long it is expected to last.

Mr. Eric Fletcher: asked the Minister of Education what is now the approximate average interval between the acceptance of a trainee school teacher and his admission to a training college.

Mr. Tomlinson: I have undertaken to offer these men places in emergency colleges if they are willing to await their turn. The estimated waiting period for men varies from a minimum of about two years to a maximum of about three, according to a man's date of entry on to the waiting list and his type of previous service, but in no case extends beyond the Autumn of 1950. I appreciate that this will cause much disappointment and some hardship in individual cases, but I cannot agree that there is any case for compensation. The waiting period for women varies from a few weeks to a few months according to the type of training which the candidate needs.

Sir W. Smithers: Is not this another example of the failure of Socialist planning—[HON. MEMBERS: "Hear, hear"]—to face the facts—[HON. MEMBERS: "Hear, hear"]—and of raising false hopes which they cannot implement? [HON. MEMBERS: "Hear hear."]

Mr. Tomlinson: No, Sir. [Laughter.] I hope this question will not be treated as one that can be dealt with lightly. [HON. MEMBERS: "Hear, hear."] Yes, I mean that for both sides of the House. It is a question which relates to the present position of men who were recruited immediately after the war, as ex-Service men in the main. Something like 100,000 applications were received, 54 colleges have been established in which to train them, and it is obvious that in the best of circumstances, with all the planning and all the will, there would have been a long waiting period. There is an extension now in some cases of from six to nine months in the waiting period due entirely to the fact that we are called upon to produce more women teachers of infants because of the rise in the birth rate. In those circumstances I think I am entitled to ask for the assistance of the House in connection with what is a difficult problem.

Mr. Fletcher: While appreciating entirely the Minister's difficulties in this matter, may I ask him if he will give an assurance that no further men's colleges will be closed until these men have been absorbed, and that if, as a result of some having been closed down, for example, in the London area, they have to go to the provinces to train, their claim for compensation on hardship grounds will be considered?

Mr. Tomlinson: I will certainly consider that, and I would not like to see any college closed while we are extending the period.

Mr. Jennings: Certainly it is a difficult position that has arisen for these students, but could not some of them have been discouraged some time ago, so that they would not have been in this position of disappointment today?

Mr. Tomlinson: I do not think there is a position of disappointment. [HON. MEMBERS: "Oh."] The disappointment arises from the fact that in any circumstances they would have been called upon to wait a minimum period of two years, but the fact that we need these men eventually, I think, justifies going out for them in the first instance.

Mrs. Manning: In view of the fact that we might have foreseen the rise in the birth rate immediately after a war, and so have redressed the balance as between the men and women we recruited, will not my right hon. Friend now see whether these young men could not take advantage of what is known as school based training so that they might become fully qualified, and thus take up this big surplus?

Mr. Tomlinson: I do not think that would assist in the solution of this problem. Only some 450 men's places have been turned over to women, so that is an indication of the size of the problem with which we are dealing.

Mr. Assheton: Is it not possible that some of these men might receive a somewhat fuller training in the new circumstances than would have been available otherwise?

Mr. Tomlinson: In many instances, but not in all. Men have taken the two years' training course rather than wait for the

one year emergency training course, but that affects comparatively few.

Mr. G. Thomas: Is my right hon. Friend aware that hundreds of these students are at present engaged as teacher trainees earning £5 a week and have the full duties of a teacher in the Metropolitan area? Will he, in view of the extended delay, consider giving them a higher recognition of their work?

Mr. Tomlinson: There is another question on the Paper dealing with that subject.

Mr. E. Fletcher: asked the Minister of Education how many trainee school teachers who have been accepted for training are now awaiting admission to an emergency training college.

Mr. Tomlinson: The number of candidates who have been accepted for training but not yet offered a place in a college was 10,691 on 8th July. Of these, 8,430 were ex-Service men, 1,309 civilian men, 85 ex-Service women and 867 civilian women.

Mr. E. Fletcher: asked the Minister of Education whether he proposes to take any steps to improve the remuneration of trainee school teachers actually engaged in teaching while awaiting entry to an emergency training college.

Mr. Tomlinson: All questions relating to the salaries of teachers in maintained schools are matters in the first instance for the Burnham Committee. In the scales which came into effect on 1st April last, the maxima for temporary teachers employed in that capacity prior to entering on an emergency training course were increased from £228 to £300 per annum in the case of men, and from £198 to £270 in the case of women.

Mr. Fletcher: Does not the lengthening of the waiting period mean that a great many of these men will, perhaps for nearly three years, be doing the same work as fully qualified teachers and sharing the same responsibilities, and should not their remuneration, therefore, be reconsidered in the light of these altered circumstances?

Mr. Tomlinson: All these things were taken into consideration by the Burnham Committee when this recommendation was made, and I would point out that they will become qualified teachers with


12 months' training, as against the two to four years' training which is normal in the case of teachers.

Mr. Berry: Will my right hon. Friend take into account the well known principle of the rate for the job instead of the situation as it is at the present time?

Mr. Tomlinson: Yes, but I think we need also to keep in mind that qualifications are asked for in determining the rate.

Mr. Gallacher: Is the Minister aware that the engineers will get very jealous of the teachers because of the good representation the teachers get in this House?

Mrs. Manning: Hear, hear.

Mr. G. Thomas: Is my right hon. Friend aware that there is no hope of any increase of salary for these men, many of whom are married, and who are receiving £5 a week for doing exactly the same work or, at least, having exactly the same responsibilities as a qualified teacher?

School Meals

Mr. Lipson: asked the Minister of Education if he will take steps to make school meals free, from the Autumn term.

Mr. Tomlinson: No, Sir. We still have a long way to go in extending the facilities for school dinners before they can be made free. I cannot estimate how long it will take to complete this programme.

Mr. Lipson: But in view of the fact that there is much variation in the scales up and down the country, will not the Minister at least consult the Association of Education Committees to see whether a standard scale throughout the country can be suggested to local education authorities?

Mr. Tomlinson: I will go into that matter.

Mr. Chetwynd: Can my right hon. Friend say what proportion he hopes to reach before making this much desired reform?

Mr. Tomlinson: No, but it has been suggested that we should get to 75 per cent.

Mr. Rankin: Does my right hon. Friend mean us to understand that he proposes to continue to apply the means test in the

meals service in spite of the fact that all our social legislation is directed towards its abolition?

Mr. Tomlinson: No, I am not giving any indication of that kind.

Mr. Granville Sharp: The Minister states that he hopes to reach 75 per cent. of the places before he introduces free meals; can he say what percentage he has reached at the present time?

Mr. Tomlinson: Fifty-two point five per cent.

Community Centres

Mr. Lipson: asked the Minister of Education if he will state for the last recorded date the number of community centres; how many have been set up in the past 12 months; and what steps he is taking to encourage further expansion of this movement.

Mr. Tomlinson: I regret that it is not possible to give reliable figures. I am sending the hon. Member a copy of a circular to local education authorities, which sets out the financial and other arrangements for encouraging community centres. Steady progress is being made, but is inevitably limited by restrictions on new building.

Mr. Lipson: Will the Minister consider making representations to such authorities as are laggard in this matter, asking them to do more than they are doing?

Mr. Tomlinson: That has already been done and I think that during the past year some 40 centres have been established in temporary or adapted buildings.

Mr. Somerville Hastings: May I ask my right hon. Friend whether, in sending out to local authorities the circular of which he speaks, he would ask them to consider the desirability of taking in sufficient land to permit the addition of a health centre on the same site as the community centre?

Mr. Tomlinson: That is another question.

Oral Answers to Questions — UNION JACK CLUB, KARACHI

General Sir George Jeffreys: asked the Secretary of State for Commonwealth Relations whether he will represent to His


Majesty's Government in Pakistan the importance of retaining the Union Jack Club, Karachi, for the use of British personnel serving in the Armed Forces of Pakistan.

The Secretary of State for Commonwealth Relations (Mr. Philip Noel-Baker): I understand that the trustees of the Union Jack Club in Karachi are now discussing its future with the Government of Pakistan. I am sure that the Government of Pakistan will give due weight to the need for adequate amenities for these men.

Sir G. Jeffreys: Is the Secretary of State aware that this club is provided for the use of British Service men out of patriotic and canteen funds, is of inestimable benefit to the 500 or 600 British Service men still remaining in Karachi and is practically irreplaceable? Further, is he aware that the Pakistan Government is proposing to requisition this Club for the use of officers?

Mr. Noel-Baker: Yes, Sir. The situation has changed and, as the hon. and gallant Member knows, there are difficulties, but I think he can have confidence in the trustees of the Club to do what is right.

Sir Ralph Glyn: Can the right hon. Gentleman inform the House whether he can make similar representations regarding like institutions in ports in India as well as in Pakistan?

Mr. Noel-Baker: That is a different question. I will consider it, but I think that at this stage we should do well to leave the matter to the trustees of this particular Club.

Dr. Segal: Does the Minister think that the number of British personnel serving with the Pakistan Forces justifies their exclusive use of this Club?

Mr. Noel-Baker: I should not like to pronounce upon that question from this Box.

Sir G. Jeffreys: Is the Secretary of State aware that this Club is private property and has nothing at all to do with Government property; is he further aware that the trustees are having very great difficulty in persuading the Government of Pakistan not to requisition this Club, and will he make representations as to the desirability of the trustees' representations being met?

Mr. Noel-Baker: Yes, Sir. I have said I will certainly consider making representations. I know that our High Commissioner is already in contact with this matter and will do what is necessary.

Oral Answers to Questions — HIGH COMMISSION TERRITORIES, SOUTH AFRICA

Mr. Parker: asked the Secretary of State for Commonwealth Relations whether it is still the policy of His Majesty's Government not to surrender the Protectorates of Bechuanaland, Swaziland and Basutoland to the South African Union without the consent of their inhabitants.

Mr. P. Noel-Baker: The policy of His Majesty's Government in the United Kingdom was laid down in the Parliamentary Paper (Cmd. 4948) in which it was declared that the three High Commission Territories in South Africa would not be transferred until the inhabitants, both African and European, had been consulted, and until Parliament had been given an opportunity to express its views. That policy remains unchanged.

Mr. Parker: Is the Minister aware that there is very strong feeling on all sides of the House that no transfer of these territories should take place without the consent of the inhabitants?

Mr. Noel-Baker: I have told my hon. Friend what the pledges are. They have been repeated a number of times since 1945. I repeat them again today, and hope that this will satisfy my hon. Friend.

Mr. Chetwynd: Has my right hon. Friend any knowledge of whether the attitude of the new Government in South Africa to this matter is any more or any less hard-boiled than formerly?

Mr. Noel-Baker: I deprecate the use of such expressions. There have been no representations or indications of representations from the South African Government in recent times.

Oral Answers to Questions — TRADE AND COMMERCE

Tourist and Holidays Board (Hygiene Scheme)

Sir Wavell Wakefield: asked the President of the Board of Trade if he will


state the basis of distribution of the posters and plaques issued under the British Tourist and Holidays Board hygiene scheme, issued in co-operation with the Ministries of Health and Food and the Department of Health for Scotland.

The President of the Board of Trade (Mr. Harold Wilson): The British Tourist and Holidays Board inform me that the posters and plaques issued under the hygiene scheme have been distributed to all registered catering establishments, except institutions, in Great Britain and Northern Ireland.

Sir W. Wakefield: Does not the President of the Board of Trade think it is gross extravagance that a number of large posters and plaques should be issued to a small business or lodging house of perhaps only four or five people in the same way as to a business of 100 or more and will he look into this very great extravagance which is now taking place?

Mr. Wilson: I am looking into the further development of this campaign but I can assure the hon. Gentleman that the British Tourist and Holidays Board do consider the views of the industry, which is represented on the Board, and that this scheme has had the widest support in the trade Press and in the trade generally.

Mr. A. R. W. Low: Does not the right hon. Gentleman agree that it is an awful waste, quite apart from the other considerations, in distributing to small boarding houses run by a family alone, or sometimes with only a few other employees, this enormous number of posters, which must be not only a waste, but an insult?

Mr. Gerald Williams: Apart from the extravagance, surely the insult to the public in asking them to "Wash Now" is very great, and would it not be much better to teach people these private matters in the elementary schools?

Dr. Stephen Taylor: Is it not a fact that one individual employee's failing to wash his hands may, in fact, cause an epidemic of enteric?

Mr. Keeling: Can the President of the Board of Trade reconcile the running tap which appears in this propaganda with the campaign of the water authorities against the running tap?

Sir W. Wakefield: asked the President of the Board of Trade how many posters of the British Tourist and Holidays Board hygiene scheme series issued in co-operation with the Ministries of Health and Food and the Department of Health for Scotland are being produced; the tonnage of paper required; the cost of the scheme; and will he state the amount of metal, tin and/or aluminium alloy used for the plaques in the same scheme together with the number of plaques and the cost.

Mr. A. R. W. Low: asked the President of the Board of Trade the cost of the Tourist and Holidays Board's "Wash your Hands" campaign; and how much tin, aluminium and paper have been or will be consumed in this campaign.

Mr. Gerald Williams: asked the President of the Board of Trade how much tin has been used in processing the recently issued advertisement "Wash Now."

Mr. H. Wilson: The British Tourist and Holidays Board inform me that they have produced 1 million posters, using 14 tons of paper, at a cost of £3,853, and 400,000 large and 75,000 small plaques, using approximately 56 tons of aluminium, and costing £31,150. No tin has been used. Whether or not more paper and aluminium will be used in connection with the campaign will depend on whether it is decided to extend it.

Sir W. Wakefield: Does not the President of the Board of Trade think that some of this paper could be much more advantageously used for newsprint, which is so urgently needed at present?

Mr. Wilson: The hon. Gentleman should be well aware that the kinds of paper used for posters and newsprint are not interchangeable.

Mr. Low: Now that the right hon. Gentleman has found out how much paper and aluminium, both of which are in short supply in this country, have been wasted in this way, will he not do something to stop the furtherance of this campaign?

Mr. Wilson: I have already said that I am in consultation with the British Tourist and Holidays Board about this matter and that the trade, as represented on the Board, felt that this was a most useful campaign.

Mr. Erroll: Would it not have been better to have started this campaign in a small way and ascertained whether it would be successful before launching it in such a big way?

Mr. De la Bère: That would have been common sense.

Foreign Tourists (Petrol)

Mr. Vane: asked the President of the Board of Trade whether he is satisfied that full publicity is given in U.S.A. to the fact that petrol is not available to tourists visiting this country unless they bring a car with them, or buy a car here and undertake to export it.

Mr. H. Wilson: Yes, Sir. Intending visitors are informed of the conditions on which they will be able to get petrol here through the British Information Services, the British Tourist and Holidays Board, the travel agencies and other channels. Publicity is also given to the special hire-car facilities for tourists which I announced in reply to a question by my hon. Friend the Member for Kennington (Mr. Gibson) on 23rd March.

Major Tufton Beamish: Can the President of the Board of Trade say whether he is thinking out any other ways in which he can discourage our American friends from spending their holidays in these islands?

Mr. Wilson: Our American friends are spending their holidays and visiting this country to the fullest extent to which travel facilities are available. If greater facilities were available, still greater numbers of American tourists would be visiting this country.

Mr. Grimston: Will the right hon. Gentleman look into this matter because my attention has been drawn to several cases in my own constituency—and there must be others—where Americans have spent their holidays on the Continent because petrol for them to tour in this country cannot be granted to their relatives or friends who are prepared to lend them a car?

Mr. Wilson: As the House well knows the figures for petrol consumption for travel facilities for visitors to this country compare favourably with those of any other country.

Mr. Scollan: Is the Minister aware that this campaign to bring people to Great Britain has completely destroyed the tourist traffic in Scotland because they have to travel by rail from the South of England to Scotland, that there are no facilities when they reach Scotland to enable them to get a car in which to travel around, and that many beauty spots are inaccessible by rail?

Mr. Wilson: No, Sir. My hon. Friend is misinformed, and if he would care to look at the regulations for American tourists he would find that the points he has mentioned are fully looked after.

Mr. Scollan: In view of that reply, may I state that I took the matter up with the Tourist Board who confirm what I have said?

Mr. Vane: While not particularly wishing to aid the tourist trade in Scotland—

Sir William Darling: Why not?

Mr. Vane: May I ask the right hon. Gentleman to bear in mind that this regulation is an extremely annoying one? If he could enable tourists to travel by car it would be very helpful?

Mr. Wilson: I am sure that the hon. Member will realise the possible abuse to which it would be subject if that were recommended.

Major Guy Lloyd: Is the right hon. Gentleman aware of the view of Mr. Thomas Johnston, the chairman of the Scottish Tourist Board, on this issue, and is he aware of the opinion about His Majesty's Government, which has been publicly expressed on this matter?

Mr. Wilson: Yes, I have been made aware of all the opinions expressed on this matter.

Mr. Odey: Will the President of the Board of Trade bear in mind that there is no conceivable reason for stopping American tourists spending dollars in this country, whether on petrol, or on anything else?

Mr. Drayson: Is the right hon. Gentleman aware that in Switzerland and Italy tourists can get as much petrol as they wish? [An HON. MEMBER: "That is not


true."] It is quite true. Is the Minister suggesting that there are the same conditions in this country?

Major Beamish: May I press the Minister to look again at this footling and unnecessary regulation? Is he aware that his comparison with other countries in Europe was highly inaccurate?

Hon. Members: Answer.

Portuguese Wines (Import Licences)

Mr. William Shepherd: asked the President of the Board of Trade if he is aware that British trade with Portugal has been severely restricted as a consequence of the refusal to grant import licences for Portuguese wines, etc., into this country; and what steps he is taking to deal with this situation.

Mr. H. Wilson: Licences for the import of Portuguese wines have, in fact, been granted on a scale agreed with the Portuguese Government. According to my information, United Kingdom exports to Portugal are not, in general, subject to severe restrictions, but if the hon. Member has any particular case in mind, I shall be glad to look into it.

Clothing Coupons

Mr. Osborne: asked the President of the Board of Trade if he will immediately replace the clothing coupons used by Mr. D. Sutherland of Walesby, Market Rasen, which owing to the delay of his Department had to be used to purchase clothing for Miss Sutherland, a visitor from Denmark, as correspondence sent to him indicates; and if he will see that such applications which assist the export trade are more swiftly dealt with by his Department.

Mr. H. Wilson: No, Sir. Miss Sutherland was not entitled to an issue of clothing coupons on her recent visit to this country, and I cannot therefore reimburse her father for any coupons expended on her behalf. I much regret the delay which occurred in dealing with this application.

Mr. Osborne: Surely since Miss Sutherland is now resident in Denmark, she is entitled to reimbursement of the coupons supplied by her father? While I sympathise with the right hon. Gentleman in

the amount of correspondence with which he has to deal, may I ask him if he cannot hurry things up in his Department, so that we can get replies more quickly?

Mr. Wilson: I would like to go into the case of Miss Sutherland in mare detail, but it is not a fact that a British citizen temporarily resident in a foreign country should be entitled to coupons for visits to this country.

Mr. Osborne: But she is working there.

Mrs. Jean Mann: asked the President of the Board of Trade when he expects to be able to down-point men's suits, at present requiring 26 clothing coupons.

Mr. H. Wilson: I hope to announce before the House rises any pointing changes, whether up or down, which may be decided upon for the next clothes rationing period commencing 1st September. I would ask my hon. Friend to await that statement.

Mrs. Mann: Can we have some assurance that the pointage in this case will be down? Does the President of the Board of Trade consider that there is any incentive to a young man if it takes 26 coupons before he can get a suit? Does that represent "fair do's" all round?

Mr. Wilson: As I have said, this matter is being very fully considered and the pointage of a very large range of items is being considered in consultation with the two Committees which I have set up specially for the purpose.

Sir Stanley Reed: Will the right hon. Gentleman at the same time protect the interests of the down-trodden male and see that the limited supply of his nether garments are not appropriated by women and worn by them in the form of slacks?

Mrs. Mann: asked the President of the Board of Trade how many coupons are respectively required for the summer flannel-type shirt worn by small boys, if woollen, cotton, or a combination of both.

Mr. H. Wilson: A small boy's shirt with long sleeves requires six coupons whatever the material. With half sleeves it requires six if made of wool, five if made of cotton. Mixtures count as wool if they contain more than 15 per cent. by weight of wool.

Mrs. Mann: Would the President of the Board of Trade see that there is less confusion in regard to the pointage on boys' shirts, and also will he obliterate that confusion by relieving them completely from points?

Mr. Wilson: My hon. Friend will realise the difficulties about the concluding suggestion which she has made, but I have asked the two Committees in question to look very specially at the position of children's clothing. I am not aware of any of the confusion to which my hon. Friend has referred.

Air-Commodore Harvey: Does the right hon. Gentleman realise that woollen garments are piling up in warehouses and shops, and will he downpoint them as much as the cotton goods?

Mr. Wilson: I am fully aware both from official statistics and from the advice we are getting from the trade about the stock position of all the garments we are considering at the present time. I do not think it would be at all helpful to try to isolate one of these garments and discuss it in the House in advance of the statement to which I have made reference.

Frustrated Exports

Mr. Shepherd: asked the President of the Board of Trade what is the total value of frustrated exports to the nearest available date.

Mr. H. Wilson: I regret that figures are not available.

Mr. Shepherd: In view of the rumours which circulate as to the volume of these exports, would it not be desirable for the Board of Trade to make a statement of their actual and possible extent?

Mr. Wilson: It is impossible to give figures on this matter, but, as the hon. Member knows, individual cases of frustration of exports where goods cannot be sold after a genuine attempt to sell them abroad are now being dealt with by a special advisory body appointed by the Association of British Chambers of Commerce at my request.

Mr. Shepherd: Can the right hon. Gentleman say what is the value of the goods involved?

Mr. Wilson: If the hon. Member puts down a Question, I will endeavour to answer.

Mr. Charles Williams: Would it not be very inconvenient to the Government if the figures were given?

Mr. Wilson: No, Sir, not at all. The policy of this country and of all hon. Members is to push exports to the greatest possible extent and it would be no embarrassment to anyone if certain exporters were not pushing exports as we would like them to do.

Mr. Drayson: Is this due to price or quality, or is it because the countries concerned will not grant import licences?

Mr. Wilson: In many cases it is due to the fact that they will not grant import licences, but it is also due to the fact that we have to face high competition in markets abroad.

Lieut.-Colonel Lipton: asked the President of the Board of Trade whether the Advisory Committee on frustrated exports has been set up in co-operation with the Association of British Chambers of Commerce; and whether he has any further statement to make.

Mr. H. Wilson: Yes, Sir. The names of the members of the Association of British Chambers of Commerce Advisory Panel on frustrated exports appeared in the Board of Trade Journal of 10th July. I have no further statement to make at this early stage.

Lieut.-Colonel Lipton: Can my right hon. Friend say when this Advisory Committee began to operate and whether it has heard any application yet? What is the procedure? Must applications from those who are interested be sent to this Committee or to the Board?

Mr. Wilson: Applications sent to the Board of Trade will be automatically referred to this Committee. Full details were published in the Board of Trade Journal last week.

Major Houghton: Will experts be co-opted to this Committee to advise on particular trades?

Mr. Wilson: The Association of British Chambers of Commerce consists of experts, but I have no doubt that if technical problems are raised they will seek all the technical assistance needed.

Mr. Assheton: Is it experts, or exports, which will be frustrated?

Mr. Osborne: Will this Committee consider the effect on our exports to the United States of the boycott by Jewish interests owing to the Palestine position, because I think it is causing a great deal of trouble in regard to exports?

Mr. Wilson: The Committee will consider the cases of all exporters who have made a genuine effort to sell goods in all markets open to us and who find it impossible to sell goods but seek to sell them on the home market.

Mr. Henry Strauss: Is the Committee composed of frustrated experts?

Anglo-Soviet Discussions

Mr. Platts-Mills: asked the President of the Board of Trade whether the further talks envisaged in the Anglo-Soviet Agreement of 1947 have yet taken place; and if he will make a statement.

Mr. H. Wilson: On Tuesday last, the 13th July, I had a useful preliminary exchange of views on these matters with the Soviet Ambassador and the Head of the Soviet Trade Delegation in the United Kingdom. We shall now arrange for our experts to discuss these questions in greater detail.

Mr. Platts-Mills: While the President will have realised that the mere resumption of talks has caused deep satisfaction throughout the country, will he bear in mind that that in which people are interested, in addition to the grain, is the possibility of getting some timber to enable our housing programme to go ahead?

Mr. Wilson: Yes, Sir. This matter has been brought quite strongly to the notice of the Soviet authorities as also has the large range of goods which we used to import from the Soviet Union before the war and from countries now embodied in the Soviet Union.

Mr. Stokes: Although I could not hear the answer to the last part of the Question, in view of the fact that the last part asked for a statement, will my right hon. Friend consider incorporating in that statement a paragraph to the effect that if the Russians wish to continue to be regarded as a civilised State they must conform to civilised standards?

Mr. Gallacher: Innuendo.

Mr. Leslie Hale: Will the right hon. Gentleman inform the House whether as yet any proposals have emanated from or been adumbrated in any quarter for the purchase of civil aircraft from the Soviet Union?

Mr. Wilson: No, Sir. I have not been made aware of any proposals to purchase civil aircraft from the Soviet Union.

Mr. Stokes: Can I have an answer to my question?

Mr. Speaker: I thought the hon. Member's question very improper. After all, Questions which are hostile to a Government with which we are in amity are not supposed to be put down.

Mr. Stokes: With great respect to your Ruling, Mr. Speaker, I was speaking on a matter of fact and not of innuendo and referring to the fact that there are 17 million people in concentration camps. I protest against His Majesty's Government having any trade relations with the Soviet unless they conform to civilised standards.

Mr. Platts-Mills: Will the Minister give an answer to my hon. Friend the Member for Ipswich (Mr. Stokes) repudiating his offensive and blackguardly suggestions?

Mr. Speaker: I think we had better get along.

European Recovery Programme

Mr. Platts-Mills: asked the President of the Board of Trade whether clarification has yet been reached with the Administrator of the European Recovery Programme as to the possible effect on Anglo-Soviet trade of the obligation resting upon him to refuse delivery to countries participating in the Marshall Plan, of any commodities which go into production for re-delivery to any nonparticipating country.

Mr. H. Wilson: We are in close touch with the United States authorities on all matters arising out of the European Recovery Programme, including the obligation laid on the Administrator by Section 117d of the Economic Co-operation Act.

Mr. Platts-Mills: As the President of the Board of Trade has been seeking clarification for more than three months of what


categories of goods we shall be prohibited from selling to Eastern Europe, is he yet in a position to say what it is which stands in the way? Is the Administrator declining to agree on these categories?

Mr. Wilson: No, Sir. We are still discussing the clarification of the questions which the hon. Member has mentioned.

Temporary Shops, Plymouth

Mrs. Middleton: asked the President of the Board of Trade why he has disallowed the erection of further temporary shops on sites of demolished houses in the Plymouth area, although the Plymouth Corporation are prepared to give permission for this development; and in view of the hardship to both traders and shoppers in Plymouth from the loss during the war of retail business premises that cannot be rebuilt owing to the cuts in capital expenditure, if he will favourably reconsider this matter, especially in relation to the applications received to develop on North Hill Terrace, Manadon Villas and York Street.

Mr. H. Wilson: The restrictions on industrial and commercial building as set out in the White Paper, Cmd. 7268, have made it necessary to concentrate our available resources on projects which are essential to the national economy, particularly those which will contribute substantially to the export trade or to import savings. In these circumstances, proposals to build shops must yield place to industrial schemes of higher importance. I have carefully considered the proposals to erect further temporary shops in Plymouth but I regret they must be deferred for the present.

Mrs. Middleton: Is my right hon. Friend aware that this temporary shopping accommodation is urgently needed because the restrictions on capital expenditure make it impossible for the central shopping area to be reconstructed at the present time? Is he further aware that in the North Hill area the local Conservative Party have been allowed to erect a temporary headquarters, and while we raise no objection to that, it is difficult for my housewife constituents to understand why a Conservative headquarters is more important than shopping facilities?

Mr. Wilson: I am not aware of the building referred to by my hon. Friend.

I am aware of the urgent need for shopping facilities in this and other blitzed cities but we cannot allow the rebuilding of shops to stand in the way of our industrial building programme.

Mr. Wilson Harris: Is the right hon. Gentleman aware of the very special difficulties in the way of retail trade in this ancient city, which has given birth to so many eminent Englishmen besides myself? Does he realise that the shopping centre has been pushed almost to the circumference of the city, which is extremely inconvenient for people at other points of the circumference, and is he prepared to give consideration to the retail trade as well as to the export trade?

Mr. Wilson: I am very well aware of many parts of England, Wales and Scotland, which have given birth to thousands of eminent Englishmen, and which urgently need factories built. I cannot allow the building of shops to stand in the way of the building of factories.

Mr. C. Williams: Is the right hon. Gentleman aware that his original answer will cause grave disquiet in the West Country in regard to the way in which this Government are always ill-treating Plymouth?

Mr. Benn Levy: Will my right hon. Friend consider the conversion of the Conservative headquarters into a shop where something useful may be sold?

Colonel Gomme-Duncan: Can the right hon. Gentleman tell the House how many eminent Englishmen were born in Scotland?

Mr. Wilson: I wish to correct the unfortunate remark which I made. Certainly a number of eminent British citizens were born in England, Scotland and Wales and it is highly desirable to build factories which should have been built years ago in order to employ them.

Mrs. Middleton: In view of the unsatisfactory nature of the reply, I beg to give notice that I shall raise the matter on the Adjournment.

Imports and Exports (Returns)

Mr. Scott-Elliot: asked the President of the Board of Trade whether he will arrange for the value of imports and


exports to be set out in the trade returns on a f.o.b. basis, thus presenting a fairer picture of the trade balance.

Mr. H. Wilson: No, Sir. In accordance with the International convention relating to Economic Statistics signed by this country at Geneva on 14th December, 1928, the value of goods which importers are required to declare on importation into the United Kingdom must include insurance and freight charges. Consequently, the balance of trade figures derived from the Trade and Navigation Accounts include these invisible items for which in any estimate of our balance of payments position, only an approximate allowance can be made.

Mr. Scott-Elliot: On a point of Order. Could my right hon. Friend speak more clearly? I could not hear a word.

Mr. Wilson: I was speaking almost at the top of my voice but there were a number of other noises going on. The short point of my answer was that the convention signed in 1928 bound the form of our statistics in this matter.

Mr. Scott-Elliot: Would my right hon. Friend at least admit that it is desirable to put the figures for imports and exports on a comparable basis in order that people may be able to compare them one with the other?

Mr. Walter Fletcher: Would not the correct way be to show the exports on an f.o.b. basis and imports on a c.i.f. basis?

Stockings and Household Linen

Mr. Osborne: asked the President of the Board of Trade what reply he proposes to send to the Lindsey Women's Institutes who are urging him to grant special supplementary coupons for stockings and household linen, and urging that all stockings should be fully-fashioned and of good quality, as indicated in the correspondence sent to him; and if he will make a statement.

Mr. H. Wilson: A large proportion of the stockings produced, including many solid and durable, though not fully fashioned types, have already been freed from coupons, and the coupons required for all others, except nylons, have been reduced. The suggestion that all stockings should be fully fashioned overlooks

the fact that most of the stockings used in this country have always been of other and less expensive types; and though our manufacturers are steadily getting more fully fashioned stocking machines, the final balance of production will be for the industry to decide in the light of public demand. The general quality of stockings being made is fairly comparable with serviceable pre-war types, though wearers of the lighter and sheerer weights cannot expect the same life from them as from the heavier kinds.
With regard to coupons for household textiles, I cannot add to the reply given to the hon. Member for West Fife (Mr. Gallacher) on 15th June. I propose that a reply on these lines shall be sent to the correspondents who have written to the Board of Trade on these topics.

Mr. Osborne: May I ask the right hon. Gentleman, in view of the fact that it would only involve a slight risk, whether he will not take them off clothing coupons now, in view of the huge stocks which have accumulated in the country?

Mr. H. Wilson: No, Sir.

Mr. Osborne: Why not?

Film Studios, Teddington

Mr. Keeling: asked the President of the Board of Trade whether he is aware of the shutting down of the Warner film studios at Teddington, and the discharge of 132 employees, many of whom had long experience of the industry; and whether he will make any statement about the prospect of these studios being reopened and of these men and women being re-employed in the industry.

Mr. Shepherd: asked the President of the Board of Trade what steps he is taking to secure the re-opening of the Teddington Studio, which has closed after only a short period of production.

Mr. H. Wilson: I am aware that, for want of a tenant, 132 employees have been discharged from the film studios at Teddington, leaving these studios with a remaining staff of between 140 and 150. As to the prospects of reabsorption for the displaced personnel, I can only say that I am persevering with my endeavours to remove any financial obstacles to the fullest use of all British studios and I am hoping to make a statement on this subject next week.

BUSINESS OF THE HOUSE

Mr. Churchill: May I ask the Leader of the House whether he can make a statement on Business for next week?

The Lord President of the Council (Mr. Herbert Morrison): Yes, Sir. The Business for next week will be as follows:
Monday, 19th July—Report and Third Reading of the British Nationality Bill [Lords]; Second Reading of the Isle of Man (Customs) Bill; Second Reading of the Public Registers and Records (Scotland) Bill [Lords] and Committee stage of the necessary Money Resolution; and Motion to approve the Agriculture (Special Directions) (Maximum Area of Pasture) Order.
Tuesday, 20th July—Supply (23rd Allotted Day)—Committee. A Debate will take place on agriculture, Motion to approve the draft Transferred Undertakings (Compensation to Employees) Regulations.
Wednesday, 21st July—Supply (24th Allotted Day)—Committee. A Debate will take place on Industry and Employment in Scotland; Committee and remaining stages of the Isle of Man (Customs) Bill, and of the Public Registers and Records (Scotland) Bill [Lords.]
Thursday, 22nd July—Supply (25th Allotted Day)—Committee. A Debate will take place on the Colonies with particular reference to Economic Development.
At 9.30 p.m. the Committee stage of all outstanding Votes will be put from the Chair.
Friday, 23rd July—Second Reading of the Laying of Documents before Parliament (Interpretation) Bill, and of the National Service Bill, if received from another place; the National Service Bill is a Consolidation Measure. Committee and remaining stages of the Statute Law Revision Bill [Lords] and of the Agricultural Holdings Bill [Lords] and progress will be made with any outstanding Business.

Mr. Churchill: May I ask what are the Government's intentions about Business today? If the Debate on the death penalty should run for some time it would surely not be right to discuss other important controversial matters on the Bill at a late hour? What is the right hon. Gentleman's intention?

Mr. Morrison: These are, of course, Amendments from another place to the Criminal Justice Bill. They are not the original discussions, and, indeed, there have been fairly full discussions already. Nevertheless, we recognise that they are matters of importance. On the main question of the death sentence, it is a matter of argument as to how soon the decision ought to be reached, but we thought not later than 10 o'clock. There will be a general discussion I understand and then the Division or Divisions can take place. We then propose to continue so as to dispose of the remaining Amendments from another place which I do not think are as controversial and which do not require such material length of time.

Mr. Churchill: It would certainly be a disadvantage if the remaining aspects and parts of this Bill had to be discussed far into, the night. Assuming that the death penalty issue is settled by 10 o'clock, which I dare say would be generally convenient, I trust that more time can be given to the closing phases of this Bill.

Mr. Morrison: The right hon. Gentleman will appreciate that we are working towards the end of the Session. I do not think there is any other time at which we could take this. And, of course, another place has to consider the consequences of what this House does. With respect, I do not think that these matters, other than the main issue, should require a great deal of time, but I am afraid we must dispose of them tonight in order to fit in with the arrangements as between the two Houses.

Mr. Churchill: Whilst we are in the hands of the right hon. Gentleman in the matter, I hope that he will watch the Debate as it unfolds and see what is the best way of treating the House.
With regard to the National Coal Board Report, will the Government give time for a Debate? We do not think that this Debate ought to come out of Opposition time. It should not come on a Supply Day. It represents direct Government policy.

Mr. Morrison: It is legitimate that this should come out of Supply. A Report is presented to Parliament by the Ministry of Fuel and Power, and I think it is quite legitimate that it should be taken on a Supply Day. We are not too badly off either for Supply Days or for a Debate


on the Appropriation Bill, if it were desired to have a Debate before the House adjourns. But I think it is legitimate that a Debate on this matter may be taken on a Supply Day or, if the Opposition prefer, on the Appropriation Bill. I think there will be two days occupied by the Appropriation Bill. It could come then.

Mr. Churchill: Perhaps it may be discussed behind the scenes—through the usual channels. Is there any immediate prospect of a statement on Germany?

Mr. Morrison: I do not think so, but, of course, the situation is known to the House. It is conceivable that there may be a statement, but I do not think there is anything immediately on the horizon, as far as Ministers know.

Mr. M. Philips Price: Can the Lord President tell us whether he can somehow find time to discuss the very important report of his own Department, the report of the Advisory Council on Scientific Policy?

Mr. Morrison: There is I think available in the Vote Office, or there soon will be, the first annual report of the new Council on Scientific Policy under Sir Henry Tizard. I have always thought it would be a good thing if we could have a Supply Day devoted to a Debate on scientific policy. But it is for the Opposition to decide what they do with their time.

Mr. Warbey: Reverting to the business of the future, can my right hon. Friend say whether we are to have a Debate on Foreign Affairs before the Prorogation? We have had one on an important, but limited, aspect of the international scene, but, apart from that, we have had nothing since the Whitsun Recess.

Mr. Morrison: I do not think that it is likely that there will be time for a Debate on Foreign Affairs before the Summer Recess. We have not done badly on Foreign Affairs.

Mr. Churchill: The right hon. Gentleman no doubt means that we have not done badly in debating Foreign Affairs. But I cannot feel at all convinced that we shall be able to part for the Recess, especially in view of the Prorogation, without examining the whole of this matter and possibly dealing with the

question of the recalling of the House should matters of gravity supervene.

Mr. Morrison: There would be time on the Appropriation Bill, no doubt, and that can be considered through the usual channels. I thought that my hon. Friend was putting the question to me on the basis of special facilities.

Mr. Edgar Granville: May I ask if the Leader of the House could give us an opportunity, before we break up, of discussing the decision of the Government with regard to the purchase of aircraft, either British or American, for the nationalised airlines of this country?

Mr. Morrison: I do not think that any announcement has been made about that. I do not see prospects of time being available.

Mr. Scollan: Could the Leader of the House inform us if he is satisfied that we are likely to reach the 30th July and have a Prorogation—before the war starts.

INDIA (STERLING BALANCES)

The Chancellor of the Exchequer (Sir Stafford Cripps): The negotiations with the Government of India on the subject of the sterling balances were concluded last week and the texts of the letters exchanged between the two Governments are being published today in London and in New Delhi. Copies will be available in the Vote Office this afternoon. It was not possible in the existing circumstances of the two countries to come to any final conclusions as to the balances and both parties agreed to settle the position for three years only on the basis of a continuing temporary arrangement based on the agreement entered into last year and published in Cmd. 7195.
The negotiations covered three main points. In the first place, it has been agreed that India should pay the United Kingdom on behalf of herself and Pakistan a sum of £100 million in respect of defence stores and fixed assets taken over by the Government of India before partition. The Government of Pakistan have concurred in this settlement which I am satisfied is fair and reasonable. The sum of £ million will be found from the joint sterling balances of India and Pakistan.
There has been outstanding for some time the question of the balances due from the United Kingdom under the normal working of the Indian Defence Expenditure Plan. Opportunity has been taken of this occasion to settle this matter and a payment of £55 million has been agreed to be due from the United Kingdom and this will be made from Army Votes. Supplementary provision, so far as may be found necessary, will be made later in the financial year.
Second, it has been agreed that a capital sum in sterling should be paid to purchase an annuity which will be used exclusively to cover India's liability for pensions paid in sterling. A similar arrangement is being made with Pakistan. Under this arrangement the Indian and Pakistan Governments will pay to the United Kingdom Government a sum of 176¼ million out of their sterling balances, against which we have undertaken to provide from U.K. Revenues tapering annuities, covering a period of 50–60 years, to be used for the purpose of the payment of pensions issued in sterling. This arrangement will cover both Secretary of State's and non-Secretary of State's Services and Provincial as well as Central Government pensions. The annuities are calculated, so far as available data permit, to fit the Pension bill in each year: If the actual amount required to pay pensions in any year exceeds the sum provided for by the annuity in that year, the difference will be found by release from the blocked sterling balance accounts, and similarly credit will be made to these accounts in any year in which the sum required is less than the annuity figure.
For the next three years, the present machinery for disbursement of individual pensions will continue, namely, the Commonwealth Relations Office will deal with military pensions which are the great majority, and the Dominion High Commissioners with civil pensions. Before the end of the three years, consultation is to take place as to the arrangements to be made after that period.
The third subject covered was releases from the sterling balances and the limitation on hard currency expenditure. Under this heading I am dealing today only with the settlement reached with the Government of India. I hope next week to make a statement on the negotiations with the Government of Pakistan.
The arrangements already in force with India regarding the control of the sterling balances have been extended for a further period. Experience has shown that inconvenience is caused to both the Government of India and ourselves by short-term settlements and the agreement is therefore to run for three years from 1st July, 1948, but it does not deal with the question of the final disposal of the remaining sterling balances. While we are prepared to contemplate, if necessary, a certain amount of flexibility between one year and another no release is provided for from the No. 2 to the No. 1 Account in the year from 1st July, 1948, to 30th June, 1949. In 1949–50 and in 1950–51 there are to be releases of such amounts, not exceeding a total of £40 million in each year, as are required to prevent the balance on India's No. 1 Account falling below £60 million. The form of this provision provides safeguard against any unnecessary accumulation of sterling in the No. 1 Account.
As regards hard currency, owing to the uncertainties of the world situation, the arrangement made is limited to the twelve months ending 30th June, 1949. In that period, India agrees so to limit her expenditure in hard currency areas that her drawings on the central reserves of the sterling area do not exceed the equivalent of £15 million. This figure has been agreed in the light of India's needs for supplies necessary for the maintenance and development of her productive capacity and it represents a further contraction in the Indian drawings on our central reserves. In 1947, those drawings were of course very heavy, while the agreement for the first six months of 1948 envisaged drawings of £10 million in the half year.
Various other matters are dealt with in the exchange of letters, but the only other point to which I need draw specific attention is that there will be periodical consultation between the two Governments on the working of the Agreement. This of course is in addition to the consultation which will be required in due course to settle both the question of what, if any, hard currency drawings there should be in the years 1949–50 and 1950–51 and the question of what is to be done about the sterling balances after 30th June, 1951.
In conclusion, I would say that the negotiations, though naturally difficult


owing to the pressing needs of both countries, were conducted in a spirit of mutual co-operation and understanding which, in my view, augurs well for the future relationship between our countries. I would especially thank the Indian negotiators and their Government for their restraint, despite many pressing demands, in the matter of hard currency drawings and their realisation of the great need to maintain the level of the sterling area reserves. From the financial and economic standpoint, I am satisfied that the agreement which has been reached represents a reasonable interim settlement for the period immediately ahead, without in any way prejudging the eventual settlement.

Mr. Churchill: The right hon. and learned Gentleman would, I suppose, agree that at the close of the war we were said to owe India approximately 1,200 million sterling as a result of defending her from invasion and conquest by Japan. It had always been kept open, as I think he will agree, that we should have the right to put in a counter claim for the immense services which we rendered in saving those 400 million people from being ravaged, pillaged and slaughtered as they would otherwise, to a large extent, have been. In what has been concluded now have we kept open until 1951 the full freedom of reviewing this question—the main question of what is called "sterling balances," which is a euphemism for British debts? Is that position open and can it be raised and examined de novo in the year 1951?

Sir S. Cripps: I have already said that any arrangement that we have made does not in any way prejudge the eventual settlement. Everything is open on both sides.

Mr. Churchill: Even the fundamental issue of setting off the services rendered to India against the debt piled up under the conditions of war?

Sir S. Cripps: Any argument which any British Government wishes to put forward is open.

Mr. Churchill: Thank you very much.

Mr. R. A. Butler: Is the right hon. and learned Gentleman aware of the anxiety of pensioners living outside India about the possible taxation of their pensions under Indian law by the Indian

Government, and can he give any assurance that this matter was considered? I have not been able to study the matter in detail, but if the right hon. and learned Gentleman could give an assurance I am sure that he would satisfy the very legitimate fears of pensioners.

Sir S. Cripps: This matter was raised, and it is understood between the Government of India and ourselves that if they should wish to impose Indian income tax on those pensioners who have hitherto enjoyed exemption from such tax—and we have no indication that they do—there would be consultation between the two Governments in order to avoid inconvenience or hardship to the individual pensioner.

Mr. Walter Fletcher: Can the Chancellor say what, during the three years' currency of this Agreement, it will mean in terms of unrequited exports from this country?

Sir S. Cripps: It means that there is a maximum possibility during the three years of £80 million sterling being drawn.

Earl Winterton: In view of the anxiety at this rather poignant time, on the part of the uncovenanted servants about their future, will the right hon. and learned Gentleman say whether these provisions relating to pensions cover the question of compensation?

Sir S. Cripps: These provisions, so far as the undertakings which the Indian Government have given are concerned, and which have been stated to the House, cover the finance for these undertakings They do not, extend any undertaking made by the Indian Government, but provide the sterling for it.

Mr. Thomas Reid: Is it not a fact that the pensions of public servants in India are being paid out of sterling balances, and, therefore, is there any reason why Income Tax should be levied by the Indian Government?

Sir S. Cripps: I do not know of any reason, any more than I know of any intention.

Mr. Godfrey Nicholson: In view of the rise in the cost of living in this country and the consequent alteration of British pensions, will these Indian pensions,


which I now understand will be paid in England from the sterling balances, be deprived of any possible increase?

Sir S. Cripps: This is a matter for the Indian Government, which now takes responsibility for these pensions, and this is to secure that the money is available for the next 60 years in order to pay them.

Mr. Nicholson: Surely, the whole question is that the cost of living and the purchasing power of the pound may change? Are the Indian pensioners, as distinct from the British public, tied to a fixed sum in sterling for evermore?

Sir S. Cripps: No, they are not tied, any more than the British pensioners are tied. In the one case, it is for the British Government, and, in the other, for the Indian Government.

Colonel J. R. H. Hutchison: Can the Chancellor say whether the talks which he mentioned as about to take place with Pakistan will be limited to the sterling balances question, or will they cover a wider field, such as the supply of raw jute to this country?

Sir S. Cripps: They will cover the whole question of materials, sterling balances and finance.

Colonel Gomme-Duncan: The right hon. and learned Gentleman has already assured the House on the subject of pensions paid to British officers in sterling. What will be the situation under this arrangement with pensions paid to similar people in rupees?

Sir S. Cripps: This does not deal with rupees, but only with sterling pensions.

Mr. Oliver Stanley: Can the Chancellor give any idea of the budgetary consequences to us of this arrangement regarding pensions?

Sir S. Cripps: The budgetary consequence to us is that, each year for the next 60 years, we shall be paying away a certain sum of money—[HON. MEMBERS: "How much?"] It varies, and the figures taper. It starts, roughly speaking, and the figures are given, at about £5,500,000 in the first year and it goes down to nothing.

Colonel Crosthwaite-Eyre: Is the Chancellor aware that, as a result of the statements he made on 29th June and 13th

July, he has now made available to other countries from sterling balances in the first six months of this year the sum of £530 million, including working balances, against £156 million for the whole of last year, and can he give us an assurance that this will be the final drain on these balances in the current year?

Sir S. Cripps: I do not know of any other cases except the Pakistan case. Whether we are likely to make any further arrangements in the course of this year I can give no guarantee or undertaking, not can I accept the figures given by the hon. and gallant Gentleman, as I told him the other day.

Mr. David Eccles: The Chancellor has said that the maximum drain on unrequited exports would be £80 million in three years. Does that mean that no interest is being paid on the balances, or that the interest is not freely disposable?

Sir S. Cripps: I was excluding the question of interest, but that applies to all matters on which we pay interest. We receive interest from a number of countries on the other side of the balance sheet.

Mr. Churchill: How much? What is the rate?

Sir S. Cripps: The rate of interest will be exactly the same amount as that which has hitherto been paid. On the large bulk of payments, it is one-half per cent., but there was a certain amount of investment in other securities during the war which are still held, and the agreement is that, whatever sum may be left, it should not carry more than 8 per cent., which is the average of both rates.

Mr. A. R. W. Low: With reference to the question raised by the noble Lord, was the question of the pensions for non-Secretary of State's services discussed, and will it still be open to the Government to discuss a better settlement?

Sir S. Cripps: The matter has been discussed and it is still under consideration.

BUSINESS OF THE HOUSE

Proceedings on Government Business exempted, at this day's Sitting, from the provisions of the Standing Order (Sittings of the House).—[Mr. H. Morrison.]

Orders of the Day — CRIMINAL JUSTICE BILL

Lords Amendments considered.

TITLE

Lords Amendments:

Line 1, leave out from "Act" to second "to."

Line 9, after "courts" insert "to abolish privilege of peerage in criminal proceedings."

3.57 p.m.

The Secretary of State for the Home Department (Mr. Ede): I beg to move, "That consideration of the Lords Amendments relating to the Title be postponed."
It is quite clear that any alteration in the Title depends on the decision which the House may take on the subject of the proposed new Clause on the death penalty. Therefore, I think it will be advisable not to consider the Title until the House has reached a decision on the death penalty.

Question put, and agreed to.

CLAUSE 1.—(Suspension of death penalty for murder.)

Lords Amendment, in page 1, line 9, leave out Clause 1, read a Second time.

3.59 p.m.

The Attorney-General (Sir Hartley Shawcross): I beg to move, "That this House doth disagree with the Lords in the said Amendment."
I understand that it will be in Order and for the convenience of the House if, on this Motion, we were to discuss the proposals which appear on the Order Paper for the amendment of Clause 1 by the substitution of the Government's present proposal.

[(1) During the continuance in force of this section, no person shall be sentenced by a court to death for murder unless it is charged in the indictment or inquisition and found by the jury that the murder was committed with express malice as defined by this section, and either—

(a) that the murder was committed in the course of, or immediately before or after and in connection with, the commission of an offence described in the Schedule to this Act (Offences involving death penalty for murder), or an attempt to commit such an offence; or

(b) that the murder was committed in the course of or for the purpose of resisting or avoiding or preventing an arrest in course of law, or of escaping or assisting an escape from legal custody, or for the purpose of obstructing a constable acting in the execution of his duty or any person assisting a constable so acting; or
(c) that the murder was committed by means of, and in the course of the systematic administration of, poison or any other noxious substance; or
(d) that the murder was committed by a person detained in a prison or other institution to which the Prison Acts, 1865 to 1898, apply, and that the person murdered was an officer of any such institution acting in the execution of his duty or a person assisting such an officer so acting; or
(e) that the accused has been convicted of murder committed on a previous occasion.

(2) Where, by virtue of the foregoing subsection a court is precluded from passing sentence of death on a person convicted of murder, the court shall sentence the offender to imprisonment for life.
(3) If in any indictment or inquisition for murder it is charged that the accused has been convicted of murder committed on a previous occasion, the accused shall in the first instance be arraigned on so much only of the indictment or inquisition as charges the murder for which he is to be tried; and if on arraignment he pleads guilty or is found guilty by the jury, the jury shall, unless he pleads guilty to having been previously convicted as aforesaid, be charged to inquire whether he has been so convicted, and in that case it shall not be necessary to swear the jury again.
(4) For the purposes of this section, a murder shall be deemed, in relation to every person guilty thereof, to be committed with express malice if the act causing the death is done with intent to kill or maim any person, and in the latter case is an act which might reasonably be expected to endanger life.
(5) For the avoidance of doubt it is hereby declared that where a person is charged with murder on an indictment or inquisition charging any of the matters specified in subsection (1) of this section, and the jury are of opinion that those matters are not established by the evidence but that the accused is shown by the evidence to be guilty of murder or any other offence of which a person charged with murder may lawfully be convicted, the jury may return a verdict of guilty of murder or of any such other offence as aforesaid.]

Before I deal with the nature or details of the Government's proposals, I should like, if I may, to say a little about the reasons and general principles which led the Government to recommend to the House that it should adopt a course which we think is consistent with the whole development of our criminal jurisprudence in this country, and which is a middle course between the conflicting views so strongly and sincerely held by people of very varying political opinions in regard to this very difficult matter.
I suppose it is a characteristic of the development and reform of our criminal law down the centuries that we have proceeded on a rather empirical basis, following the maxim festina lente—hurry slowly—and, sometimes, perhaps, we have hurried very slowly indeed. There has never been, and I do not say this by way of criticism—but rather to the contrary, any attempt such as has been made in other countries to codify our criminal law, to make it a logical and systematic whole, to classify and adjust the punishments by reference to the degree of moral guilt which may be assumed to attach to particular classes of offences. The criminal law of this country—indeed, I suppose, it is really a characteristic, and, perhaps, a very fortunate characteristic of all our institutions—has rather grown up like Topsy. But, although a stranger coming here and examining our different institutions and our system of law might very easily riddle them with nice and logical criticisms, and point to defects and inconsistencies, on the whole, our system works, and works pretty well.
From time to time, amendments are introduced and reforms are made, not, I think, as a rule, according to any particularly logical pattern, and not, I am afraid, always very easily, and sometimes, I fear, with strenuous opposition from my own profession which occasionally seems, as Lord Loreburn once said about it, to have an ingrained predisposition to resist reform. Not infrequently the reforms which have been made in our system of law, and particularly, I think, in our criminal system of law, have been made in the face of very dire prophecies of evil, and even of disaster. But this House has taken its courage in its hands and the reforms have been made; they have worked, and, before long, they have been accepted without question, and, indeed, as elementary necessities.
It is very curious, when one looks back on the history of the development of our criminal law and procedure in this country, to see the tremendous struggles that took place in regard to matters which, nowadays, we should have thought were quite beyond question, matters like the right of a prisoner to give evidence in his own defence, the right of a prisoner to be represented by counsel, and, in quite recent times, the proposal to establish a Court of Criminal Appeal. All these

matters were opposed by distinguished judges at the time, very often on the ground that they would lead to illogical results. In regard to that last matter—one of the aspects of which we are going to consider in connection with another Amendment on the Order Paper tonight—the establishment of the Court of Criminal Appeal within the lifetime of a good many of us here, Lord Halsbury said that the proposals would be absolutely unworkable just as, I have no doubt, some hon. Members will say with regard to this new Clause. But, none the less, the proposal was accepted, the court came into being, and it has worked with notable success, and tonight we shall be discussing the proposal actually to enlarge its powers.
In this question of severe punishment, the law has gone through a gradual and rather slow process of amelioration, and with it—I am not saying because of it—there may have been—and I am sure there were—a great many other considerations playing their part but I think it is right to say that with that amelioration in the severity of our law there has been a general improvement in our standards of morality and social behaviour.
We have abolished the torture, except in so far as squeamish people think that this horrible business which we are now discussing involves some measure of torture. Disembowelling has been done away with, and, in spite of the strong objections of my distinguished predecessor at the time, who said that so to do would involve breaking down the bulwark of the Constitution, we have done away with drawing and quartering—godly butchery, as they called it at that time. We have done away with all these things, and I think we were right in so doing, although I suppose that if mere severity of punishment—and not, as I believe, certainty of conviction—is the real deterrent, it may be that we ought to go back to those old methods. But I doubt whether the right hon. Gentleman will, take it upon himself to commend to the House that logical course in regard to this matter.
On the question of capital punishment, it has been said that in the reign of Henry VIII there were 72,000 executions; there were certainly very many hundreds of capital offences of one kind or another. One by one those different capital offences have been eliminated, often, in fact I


think almost invariably, in the face of very strong and powerful legal opposition. Today, apart from two grave offences against the State, in which the law really only comes into practical operation in time of war, capital punishment remains the only irrevocable punishment in the case of murder, although I should have thought that there was no crime, no offence in the whole calendar of crime, in which both the moral blame and the possible deterrent effect of punishment varied so infinitely as it does in regard to murder. Even in regard to homicide, we already accept in our law degrees—I am not using the expression in any exact or technical sense at the moment—of liability. Manslaughter is not subject to the capital penalty, and comparatively recently, in the lifetime of most of us, child killing was taken out of the category of capital crimes.
Accordingly, consistently with what we believe is our tradition, our practice, and our history in these matters, the Government now propose further to restrict the capital penalty to certain categories of murder in which it is possible that it may still be necessary for the protection of the public, and, on the other hand, to exclude from the capital category the cases where the death sentence has to be passed under the existing law, but where its infliction would shock public opinion.
That brings me to what is, perhaps, the fundamental question which the House may have to consider in this matter, although I hope—and I think I am entitled to hope it with some confidence—that we shall all be agreed about it, and that is the question of what is the justification for the existence of the capital penalty. I think I am right in saying, from my recollection of the Debate which took place here on the Clause, the Amendments to which we are now considering, that, perhaps with one exception, everybody was agreed that the protection of the community is the only possible justification for the retention and the imposition of this grave and irrevocable penalty. I should like to remind the House in this connection of what was said by the right hon. Member for the Scottish Universities (Sir J. Anderson) speaking, if he will not think me guilty of presumption for saying it, with the care and authority with which one expects him to speak. He said this:

I think there is general agreement, at any rate on certain aspects of this matter. I think there would be general agreement that the justification for the capital sentence, as for other salient features of our penal system, must be sought in the protection of society, and in that alone.
I pass on, omitting paragraphs dealing with other matters, to a point where the right hon. Gentleman came back to that subject:
There is no longer in our regard of the criminal law any recognition of such primitive conceptions as atonement or retribution. We have, over the years"—
the right hon. Gentleman is referring there to the same progressive development in our system of criminal jurisprudence which I sought to draw to the attention of the House—
fortunately succeeded to a very large extent, if not entirely, in relegating the purely punitive aspect of our criminal law to the back-ground."—[OFFICIAL REPORT, 14th April, 1948: Vol. 449, c. 998–999.]
I hope that everybody without exception will agree with that statement of the basic principles underlying the penal law of our country as at least it ought to be for the future.
On that basis the Government have examined again in the light of the decision of the House of Commons, in the light of the discussion which has taken place about this matter in another place, and in the light of those manifestations of public opinion which have occurred in the meantime, the desirability of proceeding now with this reform in our law in regard to the capital penalty for which for so long so many of us have striven and in which we have believed. I do not propose to canvass, whatever may be done by the right hon. Gentleman and others who may follow in the course of this Debate, the general question for or against capital punishment; that was very fully debated in this House upon the last occasion, and this House gave its decision upon it.
The Government fully accepted that decision, given as it was upon a free vote of the House, but since that time two fresh circumstances have intervened, neither of which it would be proper or indeed possible for us to ignore completely. The matter has been the subject of discussion in another place, and in that other place a different conclusion was arrived at. Moreover, the matter has undoubtedly been the subject of a good deal


of discussion and thought amongst the public at large, and I would not attempt to conceal from the House that, no doubt, amongst certain sections of the public there is some anxiety about the position.
I am not one of those, if any there be, who would carry Burke's famous dictum about the independence of Members of Parliament to the point of saying that Members of Parliament are entitled entirely to disregard manifestations of public opinion on particular matters. On the contrary, I think we are bound to have close regard to it. But, of course, in deciding what weight we should attach to particular manifestations of public opinion, we are also perhaps entitled to consider to what extent these expressions of the public view upon the part of some section of the community may have been artificially stirred up by those who have been playing party politics—

Hon. Members: Oh!

Mr. Godfrey Nicholson: What does the right hon. and learned Gentleman mean by "artificially"?

The Attorney-General: —and to what extent that public opinion is based on proper information, to what extent it is well-informed and properly instructed. The right hon. Member for West Bristol (Mr. Stanley) is muttering. Does he wish to intervene?

Mr. Oliver Stanley: I was only talking to my colleague, but if the right hon. and learned Gentleman would like to hear what I said, I said that in all my experience there had never been a Law Officer who had been so partisan.

The Attorney-General: I am very much obliged to the right hon. Gentleman. I cannot attempt to contradict the right hon. Gentleman, because he and others who sit opposite are, of course, masters of partisan polemics. Nobody, except one who desired to make cheap political points—[Laughter.] I hope I have not been guilty of trying to introduce or, in fact, of introducing any heat into this Debate, because this seems to me to be a matter on which we ought to be able to divide, if divide we must, on lines which are not political lines. I am bound to say that to me it has always been a matter of surprise, disturbance and disappointment to find that hon. Members opposite, for some reason, were united or

almost united—because there are notable, significant and important exceptions to it, but hon. Members opposite are largely united—in their desire to retain the gallows in this country. I should not have thought that that would have been a matter of politics here, but apparently it is and we must accept it.

Mr. Harold Macmillan: So was the Cabinet united.

The Attorney-General: I shall come to the view of the Cabinet, but that was not the view of the Cabinet on this matter. I shall deal quite faithfully with that point when I come to it.
I want to deal with the extent to which we should have regard to public opinion, because I am certainly of the view that it is not right for a Government or for an individual Member of Parliament to disregard manifestations of public opinion about a matter upon which Parliament is about to legislate; but in deciding to what extent effect should be given to manifestations of public opinion, I think one must try to ascertain to what extent that public opinion is well-informed and instructed. Fortunately, owing to the important inquiry conducted by the "Daily Telegraph" we are able to form an extremely good view about that matter. The "Daily Telegraph" conducted what, I believe, is sometimes called a Gallup Poll—I think this is the wrong expression—in which it canvassed the views of a cross-section of the public about this problem. It was good enough to circulate to Members of Parliament, and I daresay to others, the result of that poll with an analysis of the reasons upon which the different answers were based. I think it is right to say—I am not going into this in any detail; those who wish to challenge it, if any there be, in the course of the Debate, will have an opportunity of doing so—that that poll made it quite clear that the anxiety of the public in regard to this matter is based almost entirely on reasons which were unanimously rejected in this House as being invalid and irrelevant.
On the other hand, it is also true to say that the Lord Chief Justice clearly demonstrated, in one of those, if I may say so, characteristically robust speeches, that the present notable increase in crime—crime of all kinds; not only of violence, but including violent crimes—has neither been prevented nor stamped out by


severity of punishment because, of course, up to now severe punishments, the "cat" and the gallows, have been available by our law and have not been neglected by His Majesty's judges. And this is the point, I think, which we have really to consider in this Debate. Of course, this is quite true: it may be that in the absence of severe punishments of that kind the present crime wave would be greater still than it is at the moment. I do not say; that is a matter which nobody can say with certainty or as a matter of absolute proof. It is a question of opinion.
For myself—and my opinion is worth no more than that of anybody else—I believe the statistics in a score or more of foreign countries which have abolished capital punishment, some in very recent years and some in years gone by, prove as clearly as any matter of this kind can be proved, and prove with a most notable and significant consistency, that the abolition of capital punishment does not result in an increase in violent crime. For my own part, I just cannot convince myself that the people of our country are so much deterred or frightened by severe punishments, or so much more inclined to commit violent crime, than all the peoples of all those foreign countries, that the result of abolition would be different in, say, Dundee from what it was in Detroit or different in Birmingham from what it was in Brussels. That is a matter upon which different views may be held and I do not attempt to say for one moment that my view is inevitably the right one.
What is certain and what I think we can all agree about, is that if there is any deterrent effect in capital punishment at all, that effect must be greater in some classes of cases than it is in other classes. The right hon. Member for the Scottish Universities dealt with that matter at some little length in the course of his important speech on the Second Reading Debate. For instance, in the passionate crime, the crime that is committed without any premeditation or thought of the future, nobody really supposes that the punishment, however severe it may be, is likely to stop that sort of crime. On the other hand, it is arguable, and I concede at once the force of the argument, that where for instance you have a man who has committed a crime for which if he were

apprehended he might be sentenced to a long term of imprisonment, only the fear of a much more severe punishment might prevent that man, for example, from stopping the mouth of a possible witness or shooting a policeman who was attempting to arrest him. Accordingly, the Government intend to advise the House to retain capital punishment in cases of that kind and to abolish it in others.
Although I am afraid that course falls far short of what was decided by this House, it is consistent with the policy which the Government have always adopted in regard to this matter. In that regard, I want to read what was said by the Home Secretary on the Second Reading of the Bill:
The Government have given most careful consideration as to the course which should be pursued on this occasion. They think it right to bring before the House certain details of criminal statistics which indicate the relative position of crimes involving violence in 1938 and 1946."—[OFFICIAL REPORT, 27th November, 1947; Vol. 444, c. 2150.]
He then stated those details of the statistics with which we are not unfamiliar, and he added this:
In 1938 I voted for that Amendment"—
that is, the Amendment abolishing the death penalty—
and were the circumstances the same as in 1938, I would vote for it again. My mind is not static on any subject."—[OFFICIAL. REPORT, 27th November: 1947; Vol. 444, c. 2151.]

Mr. Churchill: He said a lot of other things, too.

The Attorney-General: I agree he said quite a lot of things besides that.
What we now propose is to abolish the death penalty in respect of those offences the circumstances in relation to which remain much the same as they were in 1938, whilst retaining the penalty for those crimes in which, in view of present circumstances, it is believed, rightly or wrongly, by a large section of the public that the retention of the penalty is needed for the protection of the community. We propose in the Clause we have put down on the Order Paper fully to meet the anxiety which has been expressed by public opinion in regard to the matter. That involves a compromise. It involves asking my hon. Friends to accept less than most of them would have liked to see achieved, but I dare say those who


believe, as I believe, that capital punishment is wrong in principle, also believe, and again as a matter of principle, that half a loaf is better than no bread. And, after all, we shall be making—and I say this to my hon. Friends—an important and significant step forward on the uphill and gradual process of reform. It is for that reason we introduce this new Clause.
Is it logical? Who ever heard of a compromise that was really logical? If we want to be logical I am convinced there are only two things we can do about this matter; one is abolish the death penalty altogether and the other is not merely to retain it but to retain it and extend it to all crimes—murder is certainly not the only one—which are of equal moral obliquity and of equal danger to the community, and also to an attempt to commit such crimes, since the act, the intention, the danger is the same, and it is only quite fortuitously that the full result has not been achieved. I think that was what the Bishop of Truro had in view in the notable speech made by him in another place.
Those are the only two logical alternatives, but hon. Members on both sides of the House will probably agree that this is a matter on which it is not possible to be strictly logical, and I would give this to the right hon. Member for Woodford (Mr. Churchill)—any of his hon. and learned Friends, any lawyer in this House who is worthy of a brief, ought to be able to riddle this Clause, as he ought to be able to riddle large sections of our criminal law on the statute book, now with nice, neat, logic-chopping criticisms of the kind no doubt we shall hear in the course of our discussions. I do not know, when we are discussing this sort of problem, that great human causes are always laid best on strictly logical foundations. Sometimes I think, and I believe the right hon. Gentleman will agree with me in this, that perhaps, particularly in ethical and religious matters, we are safer in relying on our instincts and our beliefs than upon what the logicians may say.
I am quite sure that if the right hon. Gentleman in 1940 had relied only on logic and not upon his great instincts and beliefs he would not have led this country to victory in the way that he did. So here today, in regard to a great moral matter, we shall invite the House not to be worried too much by logic-chopping

and hair-splitting. We aim here to deal with this matter as a matter in which great moral standards are involved, a matter in which, to some extent, we ought to be influenced by our instincts and beliefs.
What does this new Clause actually do? [HON. MEMBERS: "Hear, hear."] I am much obliged to the hon. Members who say "Hear, hear." If they do not understand it I will do my best to explain it in a simple and elementary way.

Captain John Crowder: On a point of Order. The right hon. and learned Gentleman keeps talking about a new Clause, but I understand that we are dealing with an Amendment to a Clause which has not yet been reinserted in the Bill. Would you tell us, Mr. Speaker, what is exactly before the House?

Mr. Speaker: I thought this course was for the general convenience of the House. The Attorney-General is moving to disagree with the Lords Amendment, and it is obvious what alterative is to be substituted. Therefore, the two, surely, as a matter of convenience, may be discussed together. I have no doubt that eventually the new Clause will be moved. There are hon. Members who have Amendments to the Government's proposed new words. Then, no doubt, will be the time to discuss the Amendments. Meantime we have a general discussion on the Lords Amendment, and the reasons why the alternative words are to be substituted, and the reasons for disagreeing with the Lords. I hope that is clear.

The Attorney-General: This is a little complicated, because by the Rules of Order we have to put a new Clause down in the form of Amendments to the old Clause that has been deleted from the Bill. The whole of the new Clause was on the Order Paper yesterday, but it is not today. However, for the convenience of the House we have made available in the Vote Office a print of the new Clause as it will stand, as I hope, in the Bill when this House has finally reached its decision upon it.

Mr. Anthony Greenwood: Further to the point of Order. May I ask if it is intended to discuss, during the general discussion which the Attorney-General has initiated,


the Amendment, in my name and in the names of hon. Friends of mine, to the Government's Amendment?
[In line 2, leave out from "murder," to end of line 42, and add:
and every enactment requiring a court to pronounce or record a sentence of death in any case of murder shall be construed as requiring the court to sentence the offender to imprisonment for life.
(2) Nothing in this section shall affect the provisions of section fifty-three of the Children and Young Persons Act, 1933 (which prohibits the passing of sentence of death against a person under the age of eighteen years, and requires the court, in lieu thereof, to sentence him to be detained during His Majesty's Pleasure).
(3) This section shall come into force on such day as the Secretary of State may by order appoint and shall continue in force for a period of five years from that date, and shall then expire, but without prejudice to the validity of anything done thereunder:
Provided that if at any time before the expiration of the period aforesaid an Address is presented to His Majesty by each House of Parliament praying that this section be continued in force without limitation of time or for any extended period specified in the Address, His Majesty may by Order in Council make provision for that purpose; and where any such Order in Council continues this section for any such extended period, the provisions of this subsection (including this proviso) shall have effect as if that extended period were substituted for the period of five years mentioned in this section.
(4) In the application of this section to Scotland—

(a) any reference to murder shall be construed as including a reference to any offence mentioned in section two or section three of the Criminal Law (Scotland) Act, 1829 (which sections make punishable by death certain crimes of violence against His Majesty's subjects);
(b) the reference to imprisonment for life shall be construed as a reference to penal servitude for life;
(c) for the reference to section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to section fifty-seven of the Children and Young Persons (Scotland) Act, 1937."]

Mr. Speaker: If the hon. Member prefers to discuss that point in the general discussion, I am quite agreeable to that course.

The Attorney-General: Let me make quite clear to the hon. Members who said "Hear, hear," what the new Clause—if I may so call it, although I think I am not technically accurate in so doing, because it is an Amendment to a Lords Amendment—what the new Clause does

not do. I think that is important because there has been a good deal of misconception about it. It does not attempt to define degrees of murder, to classify cases according to the heinousness or moral gravity of the offence. It does not attempt to make any distinction between crimes according to their moral culpability. It does not, for that reason, distinguish between premeditated and unpremeditated murders. Some heinous crimes may be outside the scope of the capital provisions of the new Clause. Some less heinous offences, on the other hand, may be caught up in the capital provisions of the new Clause.
The purpose of the new Clause, to put it in a phrase, is to include those cases in which public opinion feels that the suspension of the existing arrangements in regard to the death penalty might involve risks which ought not to be taken at this time. The scheme of the Clause is this. In effect, it divides murder into two categories, capital and non-capital. To get into either category there has first of all to be a murder. To come within the capital class the murder must be committed with express malice, and that is defined in the new Clause in Subsection (4). Express malice exists—I am paraphrasing what is in the new Clause—if the murder is committed either with intent to kill or, if not with that intention, with the intention to maim, and in that latter case if the act done was, in fact, an act likely to kill.
I say, "with intention." Of course, as has been said many times in our courts—it was originally said by some distinguished judge—"The Devil himself knoweth not the mind of man." The juries, in dealing with this matter, will be assisted by the presumption that a man intends the natural and probable consequences of his acts. Juries, as a matter of fact, have to deal with this problem, and do so without any kind of difficulty, in a score or more of cases every day If an act is done which, in fact, kills, or which, in fact, maims, the intent to kill or maim will be presumed, unless the prisoner succeeds in satisfying the jury that the blow which was struck was what I remember Mr. Justice Swift once called simply "a little love tap." The object of that provision in regard to express malice is to do away with the notorious and ill-favoured doctrine of constructive murder.
I remember my first murder case—almost my first case, as a matter of fact—was that of a man whose tendency to violent crime had not been deterred by the fact that only a few years before he had received three years' penal servitude and 20 strokes of the cat; and immediately on coming out of prison, in some quarrel he hit somebody else on the head with a bottle. He did not for a moment intend to kill. It was not an act which was calculated to kill. Unexpectedly the injury went wrong; sepsis set in, and the man died. The man who struck the blow was charged with murder, and after a long and, to me—because I was very young in these days—anxious trial, the jury found him guilty of manslaughter. Everyone will agree that capital punishment could not be justified on any view in a case of that kind. In dealing with that matter of constructive murder the right hon. Member for the Scottish Universities said:
I think that in regard to what is called constructive murder, where a person setting out on some felonious enterprise unwittingly causes death, where he ties up a night watchman or chloroforms someone on premises he has entered, and death results, in a case of murder for which he is hanged, the death penalty—I want to avoid undue dogmatism—has no deterrent effect at all."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 998.]
If there is no intent to kill the death penalty does not effect such a person at all.

Mr. Churchill: It does not matter how near one goes to the edge, so long as one has no intention of going over, but merely pushes the other one over it.

The Attorney-General: The right hon. Gentleman must invite his right hon. Friend the Member for the Scottish Universities, or the right hon. and learned Gentleman the Member for the West Derby Division of Liverpool (Sir D. Maxwell Fyfe), who know far more about this question, to give him some instruction and advice as to what the doctrine of constructive murder is. I do not know whether the right hon. Gentleman, in his desire to retain the gallows in this country, is going to throw over everything which was said by the right hon. Member for the Scottish Universities. We are seeking in this Clause to embody what was said by the right hon. Member for the Scottish Universities, and we are seeking to do away with a doctrine which for years

has been regarded as wholly inappropriate in the administration of our criminal law. If the right hon. Gentleman wishes to dispute that, and to say that we should continue to retain this doctrine, he will have ample opportunity of so doing and the House will have to judge.
Having got to that point, having got to a killing where there is express malice, as so defined, the jury will have to decide, under the direction of the judge, whether or not the case comes within one or another of the five categories that are set out in paragraphs (a), (b), (c), (d) and (e) of Subsection (1) of the new Clause. It may be said that that is unworkable. It may be said that that will be difficult, and the judges will have trouble in summing up to juries on this matter. That is the sort of thing which has been said before with regard to almost every reform in the criminal law. I, for my part, as a member of the Bar am not prepared to be a party to so grossly under-estimating the capacity of His Majes'y's judges or the intelligence of juries as to suppose that they will have the slightest difficulty in dealing with the administration of this Clause when it becomes the law.
This is what the Clause provides. In the first of these five cases the murder will be a capital one if it was committed "in the course of, or immediately before or after and in connection with" one of the offences set out in the Schedule. The offences set out in the Schedule—I will not read them in detail—deal with robbery, burglary and house-breaking; what I may call colloquially the gangster offences of wounding by three or more persons acting in concert together; offences committed with explosives or destructive substances of that kind; rape, indecent assault and sodomy. These are the cases which come within the first category. Take, for instance, the case of rape, which most hon. Members pose on the House, where a man commits that offence and knows that the woman he has offended against is the only witness of what he has done, and, in order to shut her mouth, kills her—that kind of case will be termed a capital offence.
The second type of case under paragraph (b) covers the murder of a police officer or a civilian who is assisting a police officer in the execution of the law—arresting a burglar, or in circumstances of that kind. The third type of case concerns poisoning,


but only when, in the view of the jury, the poison has been systematically administered. That may cause some question, and I will tell the House at once why we feel it right to do that. If we included poisoning generally, we would at once cover the mercy murder and the suicide pact—exactly the kind of case in which public feeling is revolted at present by the passing of the death sentence. I suppose that it is true to say this is an ethical question, about which I cannot speak with special authority but I think that it is true to say that the systematic, premeditated murder is by far the more blameworthy class of the two cases. There, you may have a man who is possibly taking advantage of his confidential relationship with somebody, and who, day after day, is administering poison; each time he has administered it he has formed afresh the intention to do a wicked and murderous thing. It is that kind of case which arouses, quite rightly, great public indignation, and so we propose in such cases to retain capital punishment. The next case concerns the murder of a prison officer or anyone assisting such an officer; it may be a prisoner who, in the case of some mutiny starting, assists the prison officers in the course of their duties. The last case concerns the second murder. We had in mind the notorious type of case which occurred recently when a man called Heath committed more than one murder before he was apprehended.
That is the effect of that part of the Clause. It is not very different in principle, except perhaps in one particular, from the Amendment put down by the hon. and learned Member for Chester (Mr. Nield). Let me say this about it: If hon. Members opposite, in a genuine desire to reach some compromise to this difficult problem, think that the language or the structure of this Clause can be improved, then we shall very much welcome their assistance. If, on the other hand, their object is to compromise or whittle away the effect of the present proposals on the Order Paper, then the Government intend to adhere, and to adhere firmly, to the policy which is here laid down.
I come to Subsection (2). The rest of the proposal is merely procedural, and I do not think that we need discuss it at this stage. In non-capital cases, the

penalty will be penal servitude for life. It may be said that in truth this is an even more terrible penalty than the death penalty. If it is, and if the purpose of punishment is deterrent, we ought, of course, at once to resort to that penalty; but it is not. I believe that in one case—a case in which the right hon. Member for the Scottish Universities was concerned when Home Secretary—the prisoner, who had been reprieved, committed suicide. Murderers often do commit suicide. I do not think that there is any case on record in which a man who has been offered the alternative of life has chosen to be choked to death on the gallows, and I think it is unlikely that any such case would arise.
It may be said—and I dare say that it will be said—that these proposals could be covered and the same result achieved by extending the use of the Royal Prerogative; and it may be suggested that the Secretary of State should do the very thing which only a week or two ago it was insisted that he was not to do—to suspend or dispense with the operation of the existing law in regard to particular categories of cases. It would be constitutionally quite wrong for him to do that.

Mr. Churchill: The decision is taken by the Home Secretary in individual cases.

The Attorney-General: It would be quite wrong for us in this House to lay down any general proposition or to reject the present Clause on the ground that in the future the Home Secretary ought to exercise his discretion in the category of cases set out in this Clause. We must not attempt to turn the Home Secretary into a kind of legislator in regard to these matters. Exactly the same proposal was made in 1909, when it was suggested that child-killing should be taken out of the category of capital murders.

Mr. Churchill: Infanticide is a better word.

The Attorney-General: Infanticide was a word coined subsequently when child-killing was taken out of the category of capital murders. When this was proposed it was suggested that the matter should be dealt with under the Royal Prerogative. The Lord Chief Justice, at the time, said so but the Lord Chancellor, at the time, pointed out how wrong it would be to introduce any practice—and this applies generally to this


proposition—of pronouncing sentence of death which it is not intended to carry out. That whole solemn process would become a cruel and horrible mockery, bringing the whole administration of the Law into disrepute, and the Government are not prepared to adhere to the view that it would be right to pursue any practice of that kind in this matter.
It may be said that there are other cases of equal moral obloquy not caught by the Clause. That is true. Lord Simon the other day made the grey clouds at a garden fete at Hawarden Castle even blacker by giving a whole catalogue of crime that might not be within the scope of the Clause. That is relevant only if we are looking at this matter from the point of view of retribution and vengeance, and not from that of a deterrent. So far as deterrence is concerned, the moral culpability of the crime is not in point. If retribution is in question—and I hope that we agree that it is not—there are many cases, murder and others outside this Clause, which are not caught at all.
I come to the end of what I want to say. When I was at the Bar myself I was involved on one side or the other, for the prosecution or for the defence, in about 40 capital cases. I had to be, because it is the duty of a member of the Bar, as it is the duty of a judge, to assist in administering the law as he finds it. We cannot select the cases which we try or appear in according to the view which we may have as to whether the particular law involved is just or expedient.
Apart from the Nuremberg case, a case of men who really had "shut the gates of mercy on mankind"—which I think was in a class completely apart, I do not myself recall a single capital case in which I was concerned—and the right hon. and learned Member for West Derby was concerned in some of them as well—in which I would have been prepared to say that the moral guilt of the condemned man was manifestly greater than that which had existed in many other cases in which the capital penalty was not available at all. Nor do I recall a single case in which I would have felt that the whole process—the sensational trial, the solemnity of the sentence, the black cap, the three weeks or more of waiting, with morbid excitement on the one hand and bitter anguish and anxiety on the other, and then the final thing, the hanging of some

person who, after all, was some mother's son—had really made any contribution to the fundamental dignity of man. And is that not, after all, what we ought to try to set out to achieve in this matter? In this time, following our experiences in the terrible war, human life is, I am afraid, sometimes very cheap indeed. What better time could there be than now for taking the lead and making a stand for the sanctity of that human life which God alone can give?
No one, if I may say so—and I say this with all sincerity—has a greater regard and, may I say, respect and, indeed, affection, for the right hon. Gentleman than I have; and I hope that when he follows me in this matter he will allow his real human instincts to come into play, and will not play the game of party politics. But let the House be on its guard. No one possesses a greater capacity than the right hon. Gentleman for drawing red herrings—it may be very tempting and very succulent herrings, but none the less, herrings which are dyed deep red—across the trail. No one in this country has ever been so great a "confusionist"—if I may so call him—as the right hon. Gentleman.
The issue in this case is one which the House ought not to allow to be muddled by any kind of confusion. It is a simple issue. [HON. MEMBERS: "Hear, hear."] Indeed, it is a very simple issue, and I hope it will be as clear after the right hon. Gentleman has spoken as it will be clear when I have completed my next sentence. The issue is this: Is it necessary—that is all—for the protection of the community, to retain the gallows in all respects as they exist at present? That is the issue, and there is no other issue involved in this matter. I believe it is not necessary. I believe that the best way in which the State can encourage respect for human life is by refraining from taking life itself, unless it is compelled to do so by the direst and most certain necessity.

4.55 p.m.

Mr. Churchill: The right hon. and learned Gentleman has managed to occupy, in a fashion not disagreeable to the House, three-quarters of an hour—[HON. MEMBERS: "An hour"]. Well, it did not seem an hour—in speaking upon this issue. But I feel myself that we


cannot consider this new proposal without passing in review the series of events which have led up to it. A great deal of the speech of the Attorney-General—the opening part and the end—might well have been presented by him to the Cabinet before the Criminal Justice Bill was drafted and given to the House. The Criminal justice Bill as presented to Parliament did not deal with the issue of capital punishment at all. On first thoughts the Government were content with the existing practice, and they advised the House not to disturb the existing practice. So those were their first thoughts. As the cynic has said:
Distrust first thoughts—they are usually honest.
That is exemplified by what has happened here.
An Amendment was put down by a number of hon. Members of the party supporting the Government—

Mr. Sydney Silverman: Not entirely.

Mr. Churchill: Not entirely, no, but the great majority. I do not want to rob them of any credit which may belong to them. An Amendment was put down for the abolition of capital punishment. The Cabinet had to decide how this Amendment should be treated, and they decided, as a result of a sort of bargain, that it should be left to a free vote of the House. This, no doubt, appeared a convenient method of disposing of the differences of opinion which prevailed among Members of the Cabinet and in the Socialist Party.

Mr. S. Silverman: And in your party.

Mr. Churchill: The Government were considering their own party in this matter. But it was not a proper way of dealing with a matter of this gravity, on which the Cabinet on any given occasion should have a united and collective view. We know from the Home Secretary's speech in the house that this, above all others, was in his opinion not the time to make such a change in the law, and he stated his reasons to the House in, the strongest terms. He even said that there might have been an increase in the number of murders but for the enforcement of the death penalty, and added:

in conclusion … the Government, having very carefully considered this matter over a period of months, recommend the House not to pass this new Clause tonight."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1090.]
Well, then, with what effrontery does the Attorney-General get up and say that when we follow the considered, unbiased opinion and recommendation given by the responsible Minister in this House we are guilty of playing party politics? Such nonsense would hardly earn a fee at the meanest court in this country.
We know that the Home Secretary told us his opinion and we may presume that he imparted that opinion to his colleagues. I have sat in many Cabinets, and I find it astonishing that when his advice was not accepted, or when it was not accepted and while the matter was still in the balance, the right hon. Gentleman should not have tendered his resignation. He could with great propriety have said, as he did later in the House, that he had a special responsibility and that quite apart from the general principle, all the evidence at his disposal showed that this was not the time for such a change. I must say that it was the plain duty of the Home Secretary, if his colleagues would not support him, to safeguard the dignity and character of his office by freeing himself from responsibilities which, on his own showing, he was not able to discharge in accordance with his own view of the public interest.
However, he was no doubt assured that if he made the strongest speech setting forth his views, and was supported by leading members of the Cabinet, it was probable that his views—indeed it was almost certain—would be accepted by the House. On this assurance the right hon. Gentleman—for whom we have the greatest respect and whose fortitude in discharging his functions in times of personal grief we all admire, but we, too, must do our duty—drifted incontinently forward. He committed himself in public, to Parliament, with all his responsibility, to the conviction that it would be detrimental to our country to make this change at the present time. He was supported by the Leader of the House, but all this was of no avail. A gamble on a free vote of the House did not come off. By a chance majority of 25 the Amendment abolishing capital punishment—

Mr. S. Silverman: Suspending.

Mr. Churchill: —suspending capital punishment was added to the Bill and the long-established custom of our country was suspended against the advice of the Government and especially of the Minister publicly and personally responsible. That in itself was a very grave matter.
It was incidentally a gamble with the lives of four convicted murderers, whose executions were imminent, but who were reprieved in consequence of the vote. There was, in fact, an issue of principle, on which it was the duty of the executive Government to make up their minds. Instead, it was settled by a casual vote, as a result of which Ministers and no doubt the Whips were stultified, and the Home Secretary himself stripped of authority and responsibility in the discharge of his duties.
Fortunately, in this country we still have a Second Chamber and this lapse from civic and public duty by Ministers was corrected in another place. No one can effectively dispute the fact that in rejecting the abolition of capital punishment at this time the Second Chamber did their duty. They were naturally bound to attach great importance to the arguments which had been used in the House of Commons by the Home Secretary. It was not for them to try to measure the differences of view between individual Ministers, which had led the Cabinet to believe that they would find an easy way out of their difficulties by throwing the burden upon the House by a free vote. They had also to take into consideration the advice tendered them by eminent members of the Judiciary, who spoke for the overwhelming majority of the Judges on the Bench. The Attorney-General, preening his ministerial plumes, spoke in disdainful fashion of the opinion of high legal authorities, and quoted examples from by-gone generations where they had proved themselves out of step with the march of events. But I think these matters should be settled not only by professional authorities, but by the weighing of the reasons that are involved. The House of Lords had besides to consider the merits of the case at the moment not only on abstract principles, but in relation to the crime wave which the Home Secretary had reminded us was so violent at the present time.
In acting as they did in accordance with their convictions and those of the Government and the Home Secretary, the Second Chamber were only discharging the duties which fell upon them. Scarcely less important than this, they were undoubtedly expressing the views and the wishes of the overwhelming majority of the nation. There is no doubt whatever that they showed themselves far more truly representative of public opinion than did the majority of the House of Commons. I am an old House of Commons man and I was sorry to see the popular Chamber so far out of harmony with the opinion and wishes of those whom they claim to represent.
Although I entirely agree with the action of the House of Lords in referring the matter back to us for further consideration and am myself opposed to the abolition of capital punishment, I was sorry to see that the House of Commons show itself at so great a disadvantage not only in the voting but even more in the Debate. One has only to read the Debates in the two Chambers to feel that the House of Lords on this occasion showed a higher sense of dignity and truer instinct than the House of Commons, deprived, as it was, of its proper leadership from the Government and also I must say that the whole character of the Debate in another place was far superior in seriousness and intellectual quality to that which happened here, excluding, of course—

Mr. Benson: On a point of Order. May I ask whether the right hon. Gentleman is entitled to compare or to give his views on the relative quality of the Debates in the two Houses and whether we also shall be entitled to give reasons and instances?

Mr. Deputy-Speaker (Major Milner): We will consider that question when we come to it, but so far I see nothing unparliamentary in what the right hon. Gentleman has already said.

Mr. Warbey: Is it in order for an hon. Member of this House to make comparisons between this House and another House in such a way as to bring disrespect upon this House?

Mr. Deputy-Speaker: The rule is that no reflection should be made on either House.

Mr. Churchill: With great respect, a natural and healthy emulation between


the two Chambers may be conducive to their ultimate efficiency and improvement.
As I was saying, I was sorry that the matter has been put so that the House of Commons is at a disadvantage in the view of the country by the way it has come out of this difficult business. It is no service to the cause of democracy to exhibit the people's Chamber, chosen by universal suffrage, in so inferior a position where they can be criticised, comparatively as well as actually, alike in their standard of duty and in their interpretation of the public will. The burden for this misfortune falls directly upon the Cabinet, particularly upon the Prime Minister, the Leader of the House of Commons, and the Home Secretary, who have shown levity in so sombre an issue and have shown their readiness to sacrifice what they clearly knew was their duty in order to reach agreement in the Cabinet and party circles. That is a lamentable transaction, from which the leading Ministers concerned can derive nothing but discredit.
Let me recall what was the original Amendment which this House carried and which the House of Lords has rejected. It was for a five years' experiment without capital punishment. Let us see what happened. I did not agree with that—and I do not—but at least it expressed a principle and a policy. The principle was that a court of law should never pronounce a capital sentence because of the sanctity of human life—the murderer's life, but, still, the sanctity of human life—and the policy was to try this experiment for five years and see what happened. This original Amendment compares favourably with the new proposal now before us, in which no experiment is to be made, and in which there is neither thought nor theme.

The Attorney-General: If the right hon. Gentleman will look at the Clause he will find that the last statement he has made is wholly inaccurate. That is not the only statement he has made that is wholly inaccurate, but I am dealing only with the last one.

Mr. Churchill: I have read the Clause, and I do not think I have been inaccurate in any way.

Mr. S. Silverman: Withdraw.

Mr. Churchill: If the hon. Gentleman will tell me what it is he wants me to withdraw I will repeat it twice over. In my view, this Clause is not an experimental one. [HON. MEMBERS: "It is."] It has neither thought nor theme—

The Attorney-General: rose—

Mr. Churchill: I am comparing the original Clause which was put down by so many Members and put into the Bill with the one which we have before us now. I am certain—

The Attorney-General: rose—

Hon. Members: Give way.

Mr. Churchill: The Attorney-General has much more experience of courts of law than he has of the House of Commons, and I will tell him for his own benefit that interruptions which have no purpose but to continue the argument are not a fair use of the right of interruption.

Mr. Ede: I am quite sure that no one in the House, least of all the right hon. Gentleman, wishes to go wrong on what is a mere question of fact. If the right hon. Gentleman will look at Subsection (8) he will find that the Clause we are now asking the House to adopt is experimental in exactly the same way as was the original Clause.

Mr. Churchill: But experimental in relation to an entirely different set of facts. We all remember how Queen Elizabeth dealt with poetry and blank verse"—"Marry, this is something. This is rhyme! But this"—the blank verse"—"is neither rhyme nor reason." That is what we have before us now—a mere jumble of points which seem popular at the moment to deal with cases in which, to quote the Attorney-General, public opinion feels that the suspension of the death penalty involves risk—public opinion having been measured in less than a few weeks. It is a mere jumble of points which seem popular at the moment, and which have been suggested by the more recent batch of murders as recorded in the newspapers. It has been put together not with the object of making a better and more humane system of criminal justice but of getting round an awkward Cabinet or Parliamentary difficulty. The Attorney-General said it was a compromise. Confusion is not compromise. A bargain between politicians


in difficulties ought not to be the basis of our criminal law. This is an attempt, as the Attorney-General said, to steer a middle course, to steer a course of "no meaning" between the "No" of the abolitionists and the "Yes" of the mass of ordinary folk.
This transaction stands in sorry contrast with the long, majestic evolution across the generations of our Common Law. It is disheartening to see such questions being settled by mere expediency and current party embarrassments. Those who favour the abolition of the death penalty ought to vote against this new proposal which is utterly contrary to their conscientious opinion, or to any opinion about which the plea of conscience can be advanced. Conscience and muddle cannot be reconciled; conscience apart from truth is mere stupidity, regrettable, but by no means respectable.
I come now to a case in which I took some interest myself, and in which an interest was also taken by the hon. Member for Nelson and Colne (Mr. S. Silverman), who is so anxious to interrupt, and who, I hope, will be fortunate in being able to catch your eye, Sir, in the Debate. I am unable to understand how Members opposite, who supported the execution of the West Africans a few months ago, after these men had been brought three or four times to the scaffold or to the verge of it can explain their position, even to themselves. According to the principles I learned at the Home Office, and the feelings I derive from my own heart, it is an act of inhumanity to "cat and mouse" human beings in this way. This was the most horrible and cold-blooded execution to which the House of Commons, in my long experience, has ever positively and to a large extent directly approved and enforced. I would never have allowed it in any Department or Government of which I was the head. Yet some of those Members, the humanitarians, who approved or acquiesced in this grim deed, now tell us that their consciences and sentiments are outraged by the ordinary long-established procedure of British justice. It is not possible to exhibit a more complete lack of consistency or indeed conviction upon these poignant issues.
The same House of Commons, in the same Session, has, by its vote, saved the life of the brutal lascivious murderer who

thrust the poor girl he had raped and assaulted through a port-hole of the ship to the sharks and has sustained the Colonial Secretary in making these five or six Africans, who were under the spell of a degraded superstitution, go through the agony of death three or four times over and hanging them in the end. The number of lives taken on this occasion is nearly equal to half the executions in Britain in a whole year. But that is not the point. The point I have in mind is the degree of suffering inflicted. Hanging, under English law, if properly conducted, is, I believe, an absolutely painless death—

Mr. Stubbs: Try it.

Mr. Churchill: Well, it may come to that. It is in the weeks and days and hours before hanging that the ordeal to which criminals are subjected arises. In this case the men I am speaking of were made to go through this ordeal again and again, without being considered to have expiated their crime.
It is impossible to comprehend the mental processes which in a single Session exhibit such devasting contradictions. Although I do not agree with them, I respect those idealists who wish to abolish the capital penalty. In an age which has reduced the value of human life more than any other of which there is record, and which has multiplied executions in cold blood to an extent which would be amazing to former generations, the abolitionists stand against the storm and hold up their mild Victorian lamp in the blackness of the 20th Century. That is, morally and intellectually, a respectable and comprehensible position. But there is a consideration which I would venture to submit in its proper place and proportion at this point.
I wonder myself whether, in shrinking from the horror of inflicting a death sentence, hon. Members who are conscientiously in favour of abolition do not underrate the agony of a life sentence. To many temperaments—to some at least—this is a more terrible punishment. In any case, the gulf of suffering between the two, death and life, is not so wide as is represented.
I found it very distressing nearly 40 years ago to be at the Home Office. There is no post that I have occupied in Governments which I was more glad to leave.


It was not so much taking the decisions in capital cases that oppressed me, although that was a painful duty. I used to read the letters of appeal written by convicts undergoing long or life sentences begging to be let out. This was for me an even more harassing task.
I remember one capital case in particular, to which the Attorney-General referred. This was the case of a soldier of about 45 years of age, who in a fit of rage killed his wife or the woman with whom he had long lived. After the crime he walked downstairs where a number of little children to whom he used to give sweets awaited him. He took all his money out of his pocket and gave it to them saying, "I shall not want this any more." He then walked to the police station and gave himself up. I was moved by the whole story and by many features in the character of this unhappy man. The judge who tried the case advised that the sentence should be carried out. The officials at the Home Office, with their very great experience, suggested no interference with the course of the law. But I had my own view, and I was unfettered in action in this respect.
One of the great privileges and advantages we have in our present system of procedure is that the Home Secretary is unfettered as to the advice which should be tendered in the use of the Royal Prerogative. At every point in our system of criminal justice the benefit of the doubt is given to the accused. At every point in the subsequent consideration of a capital sentence, when it has been passed, the same bias is shown in favour of the convicted person. But when justice and the law have done their best within their limits, when precedents have been searched and weighed, mercy still roams around the prison seeking for some chink by which she can creep in.
In this case I decided to advise a reprieve and commutation to imprisonment for life. This was accordingly done. However, a few weeks afterwards this man committed suicide. He hanged himself in his cell and left behind him on his slate the following letter, which I will read to the House because I am anxious that the whole of this question between capital punishment and life imprisonment shall be seen in its true proportion. While I fully agree that capital punishment is a

supreme penalty and that mercy is extended in converting it to a life sentence, yet I do feel that the gulf between them is not nearly so wide as people suppose, at any rate in some cases. I will read the letter:
I hope you will be as good as to let my sister, Mrs. Susan Fenton, 8, Oldfield Road, Oldfield Lane, Wortley; and my brother George William Woodcock, 36, Mickley Street, Tong Road, Armley, bury me in my own grave in Wortley Cemetery, Oldfield Lane. I was pleased at the reprieve for the sake of you; not for myself, because I knew it meant 'for life' in gaol, and there is no pleasure in that. I think I had rather be dead than be in gaol for life. I've been studying ever since how to do away with myself, because I do not intend doing it. I have kept a cheerful look to keep them off thinking that there was anything going on. But I have been studying this above a week. I think I will be a lot better oil in my grave, because if I had to get out with 15 years I should be 61 years old. Where could I find work at that age? So I hope I manage alright, so goodnight and God bless you all.
Your poor unfortunate brother,
E. Woodcock.
I mention this case in order that those who shrink from the horror of inflicting the death penalty may not underrate the gravity and torment of the alternative. Indeed, they must be on their guard lest they should be soothing their own personal susceptibilities at the expense of what is in many cases a more severe punishment of the guilty.
No one can suppose that if the death penalty were abolished, murderers of the most ferocious type could be released after 15 or 20 years. In the United States sentences of 30 years are often imposed, and in some other countries the life sentence is rigidly carried out to the end. There is no official capital punishment in Soviet Russia. Murderers, like political dissentients, are just toiled to death in prison or slave camps, and we are assured that this is a proof of the enlightenment of the Communist ideology. There is a danger that our humanitarians may sleep comfortably in their beds, feeling that they have lifted a burden from the world and from themselves, and never think again of the long years of awful gloom, deprivation and misery of mind and soul which they have inflicted on those whom they meant to benefit.
Personally, I believe that our administration of criminal justice in capital cases reaches a very high standard of justice,


compassion and good sense. I am sure the House would be wise to put the same confidence in our present processes as do the overwhelming majority of the British nation. In my time at the Home Office there were only about a dozen executions a year, and I believe that is not very different from the figures today; that is to say, more than half the convicted murderers are reprieved, and the law is administered in a way which commands the confidence and the approval of the vast majority of our community of 47 million, among whom murder is exceptionally rare compared with many other countries.
We may put our trust in the wide and flexible use of the Royal Prerogative. No reasons have to be given by the Home Secretary, and no limits are put. I am sure that it would be a dangerous mistake to impose, as this Clause does, all kinds of arbitrary rules. Although the full freedom of the Prerogative will no doubt remain under the new proposals of the Government, there is a danger that conventions will grow up in practice which will, in fact, canalise clemency. I am told, and I believe, that you might well have just as many executions—if not indeed, more—under this proposal as you would have by adhering to the existing system. How then can the abolitionists dwell upon the moral and conscientious issue? How can they invoke that when a very large proportion of the executions which now take place will still continue?
One of the ideas behind the Clause is to prevent the death sentence being passed on certain categories of killing. In many of those, the sentence will never be carried out, and in some it ought to be. The intentional taking of human life for private motives is always a terrible crime against society, and nothing should be done to detract from the awe and solemnity of the death sentence. Even in cases where, in all probability, it will be commuted by the exercise of the prerogative of mercy, its omission may weaken the general reprobation of the crime which has been committed. This affects the community as a whole, but it is worse for the jury, to which I now come.
The ancient Anglo-Saxon foundation of all our system of criminal justice is trial by jury. I say that this new and complicated proposal will weaken the jury's

sense of responsibility and by introducing in many cases distinction without difference it will puzzle and baffle juries and make their hard task even more difficult and painful. The inconsistencies and absurdities of the Clause in practice will also prejudice the comprehension by the public of the law of the land and will tend to bring that law into disrepute. Innumerable cases can be cited which will expose this present proposal to derision. It is no use hon. Members saying that they can pick holes in the present law. I dare say they can, but nothing like what I am going to cite to the House now can be picked in our present system of law. Innumerable cases will be cited, discussed and debated in every part of the country, and this will impair the high structure of our criminal justice. Let us examine this proposal for a few minutes.
The Government Clause provides that the death penalty will only apply when two conditions are fulfilled. First, there must be, as the Attorney has explained, express malice, which is described as an intent to kill or maim by an act which might reasonably be expected to endanger life. Secondly, the murder must be of a certain type. For example, it must be done in connection with robbery, housebreaking, rape, sodomy, etc., or done in connection with avoiding arrest, escape, prison officers, etc., or second murder. Such are the proposals of the Clause. The result is that all the most frequent types of murder, that is to say, wounding, stabbing, strangling, drowning, etc., committed for all the most wicked motives, jealousy, greed, revenge, etc., will not carry the death penalty, because that penalty will only apply in such cases if the offence is committed by three or more persons.
Secondly, most of the murders committed in the course of committing a felony with violence, that is to say, robbery, rape, etc., and most of the murders committed in connection with burglary and housebreaking, will also not be punishable with death, because for that it will be necessary to prove an intent at least to maim. Let us take only two examples of the problems to be put before the jury. A housebreaker is disturbed. He fires his gun and kills. His defence at the trial is that he fired only to frighten. How can it be proved beyond reasonable doubt that he intended at least to maim?


Again, a ravisher kills a woman he is raping, by strangling or throttling her. His defence is accident. How can an intent to maim be proved?
Let us now apply more directly the new version of the law which we are now asked by the Government to lay down. I am bound to state the facts, however shocking they may be to our accepted methods of reasoning. The Attorney-General has referred to a case which has been much mentioned in public, the systematic administration of poison. That is punishable by death, but if the crime is committed by a single dose, no death sentence can be passed. A man may deliberately kill his wife with a chopper without being sentenced to death. The Government in fact—this is what we are asked to agree to—say to all and sundry, and ask us to say to all and sundry: "If you decide to kill your wife because, after cold, calculated and deliberate consideration you come to the conclusion that you will live more agreeably alone or with another woman, or because you will benefit under the terms of her will, you have a variety of methods at your disposal, without risking your life even if found guilty. You can strangle her or hold her head in the gas oven until she expires" [Interruption.] This is not my language—it is what we are asked to place on the Statute Book. "You can stab her. You can cut her throat or dash her brains out, each of which will be quicker. If you can arrange the procedure, you can set her on fire, push her off the station platform in front of an oncoming train or push her through the porthole of a ship. Or, more easily, you can drown her in the bath. There is a reciprocal set of cases which can arise on the part of the weaker sex. "But whatever you do," say the Government, "you must be careful not to invite more than one confederate to help you, otherwise your immunity will be gone."
These are revolting declarations to be presented to Parliament, and still more to be put in the statute book, by any Government or by any House of Commons that has ever been known in this island. I repeat them with disgust in order to show the folly of trying to categorise murderous brutality and to expose the levels of thought and principle to which we are now invited to descend. If the

amending Clause now before us becomes law, the murderer will, in all the cases I have mentioned, be able to sleep soundly in the knowledge that, in the event of detection, he cannot be put to death. These cases can be multiplied indefinitely, and will be undoubtedly, as the matter is argued out all over the country among all classes of people. Thus the whole of our system of justice in capital cases will be brought into public contempt. I say that this is a high price to pay for party manoeuvres, to unite a Cabinet, or "to bring our fellows together in the Lobby." It is a shameful exhibition that we have been presented with in the whole of this story.
I am told by very high legal authorities that great difficulties will be placed upon the judges in summing up. That is brushed aside by the Attorney-General, for no other reason than that it was necessary to fill in this part of his argument with an assertion resting on his own personal opinion. Practically the whole of this lengthy Clause, which few newspapers have had the space to print in its entirety under present conditions, will have to be explained to juries on many occasions. I am assured that is so by people whose knowledge, authority and repute in the law are as a pyramid to a molehill compared to that of the Attorney-General. I cannot take his advice against the advice of the people whom I have had the opportunity of consulting. I say that practically the whole of this lengthy Clause will have to be explained to the jury. [Interruption.] What did the Attorney-General say?

The Attorney-General: I said "rubbish."

Mr. Churchill: That may be what the right hon. and learned Gentleman has in his head, but it does not carry conviction. We all know that Law Officers in his position have to be trotted out to cover up the most difficult and unsatisfactory situations into which Governments get. I have often seen it done, but never have I seen it done with such an undue parading of his own particular opinion on a matter upon which a great profession could form its own judgment.

Mr. James Hudson: Who advised the right hon. Gentleman?

Mr. Churchill: I take full responsibility for everything I say. The jury will have


to be instructed and will have to decide whether a killing was in the course of or in connection with the offences described in Subsection (1, a) of the Clause or whether it was for any of the specified purposes in Subsection (1, b), or whether it was in the case of poisoning by systematic administration under Subsection (1, c).

The Attorney-General: Quite wrong.

Mr. Churchill: Well, the Government will have an opportunity of speaking. The Home Secretary can say what it is. I am told by people who have studied this and have great professional attainments that what I have just said is correct because the jury will in many cases have to be advised—

The Attorney-General: indicated dissent.

Mr. Churchill: The right hon. and learned Gentleman may shake his head till he shakes it off, but it does not affect the argument. Intense difficulty will occur in the case of a murder alleged to have happened during a rape. I am advised that the judge would have to direct the jury first as to constructive malice under the law as it is at present—that is to say, the malice that is implied from death resulting from a felony involving violence—and secondly, express malice under the law introduced by the Amendment—that is to say, an intention to kill or maim by an act which might reasonably be expected to endanger life. If that is not correct, when the Home Secretary or any other person of authority winds up, no doubt we shall be told, but it is not much good the Government proclaiming facts which are not correct in regard to the existing interpretation of the law of the land.

Mr. Hector Hughes: Would the right hon. Gentleman—

Mr. Churchill: The offence—

Mr. Hector Hughes: rose—

Mr. Deputy-Speaker: No hon. Member is entitled to speak unless the right hon. Gentleman or the hon. Member having possession of the House gives way.

Mr. Churchill: I really would not say anything more controversial than that the Home Secretary would have the power to answer these points and let us know

the view of the Government on them. If I am told that the defence of the ravisher in this case could be that he did not intend to use more force than was necessary to make the unfortunate woman submit to his approaches, is he then to escape the supreme penalty because there is no proved intention to kill or maim? All those points, I am assured, will have to be put to ordinary jurymen and jury-women who have never before been called upon to split such hairs.

Mr. Hector Hughes: It is on that point—

Hon. Members: Sit down.

Mr. Churchill: Ordinary jurymen and jurywomen who have never been called upon to split such hairs will now have to do it for the first time with a human life at stake. This Clause will in consequence give rise to endless legal arguments both before the judge and in the Court of Criminal Appeal. The result will be to make it more likely that certain categories of murderers will be hanged while other categories, equally heinous, cannot be. Secondly, it must tend in the long run to hamper the Home Secretary or some other Home Secretary in the exercise of his unlimited discretion which is by far, the most elastic, sympathetic and comprehending process that can possibly be used. But it is the ordeal to which juries will be subjected on which the main weight of the practical case rests.
We do not allow the decision of guilt or innocence to be decided in the first instance by trained legal minds or persons of exceptional education. The prime guarantee of British justice is the honest opinion of the ordinary man or woman. Very striking words are used in the jurymen's oath:
I swear that I will well and truly try the issue joined between our Sovereign Lord the King and the defendant"—
or prisoner—
and a true verdict give according to the evidence.
Some systems of society seek to substitute for this the decisions of State stipendiaries or officials acting under the influence of the Government of the day. We regard it as a fundamental safeguard of our democratic liberties and life and a principle which has been woven into the whole history of our judicial system that the supreme question. "Guilty or Not


Guilty?" shall be decided by ordinary folk. At the present time this process of decision by a jury has the merit of simplicity. The jury are asked only one decisive question: "Have the facts given in evidence proved that the crime was committed?" There is the alternative of manslaughter which was mentioned, but in principle that is the issue required of the ordinary people on whom this stress is cast from time to time.
Even now there are disagreements on juries, in which case all the disadvantage of a second trial have to be faced, but by loading the issues to be decided by a jury with the almost metaphysical subtleties of this Clause, the Government will be placing on British juries a task which, however carefully it is defined by the judge, however keenly and lengthily it has been argued by counsel, will be beyond their compass to fulfil. This will greatly increase the probabilities of disagreement.
I say then, that this new Clause constitutes an assault, no doubt not intentional but none the less consequential, upon the system of trial by jury in capital cases and that as such it strikes at the democratic principle inherent in the life of our country that a man is entitled to the judgment of his equals. It seems almost incredible that such a rigmarole of wrong-thinking and right-thinking, of pandering to sectional sentiment and party currents, could have been produced by the collective ability of a British Cabinet. It makes one shudder to feel that this may be only a sample of the processes by which the most overwhelming decisions for this country and for the whole world are now being arrived at.
I would say without hesitation that if I had to choose myself between voting for the original Amendment inserted by the House two months ago, or for this new proposal which the Government now thrust before us, I would rather vote for the original proposal and see what happens. Fortunately we are not condemned to a bleak choice between two kinds of error. We are free at this moment, thanks to the moral courage of the Second Chamber, to pass the Bill in the form in which it was first introduced by His Majesty's Government and commended to us so strongly by the Home

Secretary and by other leading Ministers. That would be by far the most sensible thing for us to do in the interests of the public, in the interest of this House of Commons, and even in the interests of the Government themselves, for they have no surer way of earning mockery and discredit than by persisting in their present course. I trust that, even now, good sense and reason will prevail. If not, our duty is clear, and we must not fail to discharge it.

5.50 p.m.

Mr. Sydney Silverman: I am delighted to begin by offering, if I may in all humility, a somewhat unusual congratulation to the right hon. Gentleman the Leader of the Opposition. I have listened to many of his speeches in days when this country was passing through its darkest and yet its finest hours. His place, if I may say so with humility and respect, in the political history of this country will rest to no inconsiderable extent upon those speeches made in those times. The congratulation that I would like to offer him today is that he has just made a speech which he himself would not wish, I think, to be read, say, at the same time or to form part of the same series as the speeches that he made in those days. I think he is deserving of congratulation because, when the heat of what has now become, unfortunately, a party controversy has died away, the right hon. Gentleman will regret that he made the speech which he made this afternoon—

Mr. Churchill: indicated dissent.

An Hon. Member: Nonsense.

Mr. S. Silverman: —and, therefore, may be inclined to congratulate himself upon not having made a good one. I do not know whether the right hon. Gentleman still complains at the description of the efforts which are now being made to alter the decision which the House of Commons made a little while ago, as a party manoeuvre. I should think the right hon. Gentleman would be the first to admit that the speech he has made this afternoon was deliberately and designedly a party speech and nothing else. He would have made a better speech and a more useful contribution to this extremely difficult question if he had quoted the words of the juryman's oath at the


beginning of his speech instead of at the end, and had himself taken an oath before he made his contribution this afternoon to endeavour to reach a true verdict according to the evidence, because he made no attempt whatever to do so. [An HON. MEMBER: "He did not know the evidence."] He knew the evidence and he deliberately ignored and distorted it.
His first complaint made against the Government was that they had not given a lead, not laid down a policy, not put on the Whips but, as he would say, had shuffled off their responsibility on to the House of Commons. That was his first complaint. The right hon. Gentleman did not say, and perhaps he did not remember, that he was a party to that plan. So was the whole of the Opposition Front bench. The decision that this matter should be decided by a free Vote of the House of Commons was a decision taken by the whole of the House of Commons with the consent of everybody, and with the consent of the Leader of the Opposition. It really is a very shabby thing that, having agreed to that, having lost in the result, he should now come and complain of the Government for having carried out the bargain which he himself made with them.

Mr. Churchill: The responsibility rests entirely with the Government.

Mr. Silverman: The right hon. Gentleman is not doing himself justice. Is he really suggesting that the responsibility for what he does rests with anybody but himself?

Mr. Churchill: The responsibility for the course pursued in the House and the decision as to putting the Whips on or not, is the responsibility of the Government, surely. It is quite true we did not object at the time—

Mr. Silverman: But it is not true to say, merely, that the right hon. Gentleman did not object. That is untrue. It was not merely the withholding of objection. The right hon. Gentleman himself stood up in his place at the Box and warmly welcomed the decision of the Government to do it in this way. Is that the responsibility of the Government? Was it the responsibility of the Government that the Conservative Opposition Whips were taken off just as the Government Whips were taken off? [Interruption.] Who said they were not?

Earl Winterton: The hon. Gentleman knows perfectly well. He sat on the Committee. I have never heard an argument more dishonest than his. [HON. MEMBERS: "Oh."] I challenge him—

Mr. Silverman: I gave way—

Earl Winterton: A dishonest statement.

Mr. Silverman: I gave way to the noble Lord because I thought he wanted to say something; not because he wanted to indulge his characteristic impudence. The noble Lord has said that I made a dishonest statement—he has told a deliberate lie.

Hon. Members: Oh!

Mr. Quintin Hogg: rose—

Mr. Deputy-Speaker (Major Milner): That expression must be withdrawn, but may I also say that I hope we shall have a moderate and good-tempered Debate, and that applies to both sides of the House.

Mr. Silverman: I withdraw the word, Mr. Deputy-Speaker; I ought not to have used it, and I apologise to the House for having used it.

Earl Winterton: rose—

Hon. Members: Sit down.

Mr. Silverman: I will not give way again.

Earl Winterton: On a point of Order. In view of what the hon. Gentleman has said, Mr. Deputy-Speaker, it is only fair that I should withdraw the term "dishonest" but I would like to have an opportunity of explaining it later.

Mr. Silverman: Perhaps we may now get back to the facts. The noble Lord intervened with his remark which he has now withdrawn—and I accept his withdrawal—with a reference to what happened in Committee. I was not talking about the Committee. The noble Lord knows very well that it was part of the agreement that this matter should not be raised in Committee—

Earl Winterton: indicated dissent.

Mr. Silverman: Oh, but it was, and the noble Lord must not deny it. Let him go away and read HANSARD. The


arrangement was made on the Floor of this House, and the right hon. Member for North Leeds (Mr. Peake) himself joined in the arrangements made across the Floor: first, that it should not be raised in Committee; secondly, that it should be raised on Report stage; thirdly, that on Report stage it should be left to a free vote of the House, with the Whips off on both sides. The Leader of the Opposition himself made the proposal whereby this proposed Amendment on the Report stage was taken out of its order so that it could have a full run of Debate the whole day. [Interruption.] Certainly, and having done that, the right hon. Gentleman now complains that the vote when it was taken showed a catch majority—

Mr. Churchill: "Casual."

Mr. Silverman: Chance—I beg his pardon. The right hon. Gentleman in his speech said that the decision of the House was taken on a casual—chance majority—[An HON. MEMBER: "Not 'chance'."] Well, the implication was that it was a mere accident that the majority fell that way, and that it could have fallen the other way. But the right hon. Gentleman himself made the proposals and himself secured even that the Division was delayed to enable so many of his colleagues to get here from another function. It comes very badly indeed from the right hon. Gentleman, and is a rather shabby thing for him to have done, to have complained of arrangements to which he was a party throughout.
Why was it done? Why was it that we all felt at the time, whatever we or some people may feel now, that it was a proper thing not to have a Government lead, not to have a Government policy, not to have the Whips on on either side but to leave this matter so that every Member of the House of Commons could make up his own mind without pressure, without influence, without consideration for party ties or for party obligations of any kind, and reach his own honest, conscientious judgment on the argument? Why was that decided, and why did the right hon. Gentleman agree to it? As he said himself in his speech he is, above all else, a House of Commons man, and I think he will agree with me that the House of Commons is never better than when it discusses and decides an important question in an

atmosphere of that kind. Our Debates are always best when the Whips are off. Our decisions are always soundest when they are our own individual judgments, conscientiously arrived at after hearing the argument. That is why we wanted it done that way; that is why everybody wanted it done that way—there was no other reason.
It was common to all sides in this dispute that in a matter of this kind we are not justified in deciding purely on the merits of the case. That may sound strange but we all agree that it was so, because the merits of the case might take us further than public opinion was prepared to go; and that in this matter of the criminal code, and especially in this most important part of the criminal code, it was quite wrong for Parliament to make reforms, no matter how justified they were in themselves, if they were so far in advance of what public opinion would tolerate that they would bring the law into disrepute. It was for that reason—and, I think, that reason alone—that my right hon. Friend the Home Secretary advised the House against adopting the Clause which ultimately was adopted. It was not that he thought himself that it was wrong—in 1938 he was in favour of it—but he was saying that, in the state of the public mind and in the light of what had happened since 1938, due to abnormal conditions, such a reform could not now be carried without being so far in advance of public opinion that it ought not to be carried. That was the case put forward.
What is the state of the public mind? The state of public opinion on a difficult question is a matter of opinion and can be nothing but a matter of opinion. We cannot test public opinion by a random reaction of buttonholing somebody in the street, in a pub, in a club, or in a railway station and getting his random casual answer to a question of this kind. We cannot test public opinion by a mere casual counting of the first heads we happen to come across. It is instructed and informed public opinion that counts, and what was felt in all quarters of the House was that the proper way of testing public opinion in this matter was to get a cross-section representative of the community at large and, having got that cross-section—largely, widely and broadly representative of the community as a whole—then


present it with the facts, the figures and the arguments both ways and accept its verdict, as we would accept a jury's verdict, as being broadly representative of what public opinion generally would feel about it if they had the same opportunity of hearing all the facts and arguments, weighing them up and coming to a conclusion. And we asked, "Where will we find in this country a cross-section of the community more broadly representative of it than this House of Commons?"
That was said and accepted at the time. As to this business of Gallup Polls and Mass Observation I do not know whether the right hon. Gentleman has taken the trouble to read the leaflet put out by the "Daily Telegraph," containing not merely the bare figures but a much more careful account of how the analysis was taken and what people said. I will not delay the House with a lot of quotations, but let me read just one, which I hope will horrify hon. Members at least as much as it horrified me. One gentleman explains why he thought the change was wrong. I will read the paragraph:
A very substantial group amongst those who disapprove the abolition thus do so from reasons of principle. The phrases 'an eye for an eye' and 'a life for a life,' etc. are recurrent. Religious reasons"—
that is put in heavy type—
merely emphasise the same principle as Christian doctrine.
Then there follows this quotation from a man who is a N.A.A.F.I. club manager, aged 47:
I think it's all wrong.
He means the proposed change.
I'm a Christian to all intents and purposes"—
[Laughter.] I want to go on. The man's opinion must be respected. This is what he says:
I'm a Christian to all intents and purposes and it's our creed that it's an eye for an eye and a tooth for a tooth, and we are going against our own religion by doing away with something that has been taught to us for donkey's years.
[Laughter.] That is a representative opinion. I have not sought out one for its uniqueness or its peculiarity. The reasons given here are all of that calibre and of that kind. It is not this gentleman's fault. He never had the opportunity of listening to the careful Debate

in this House. He never had the opportunity of hearing speaker after speaker, whether he was in favour of the abolition or against it, saying, "I do not believe in 'a life for a life' or 'an eye for an eye.' I do not believe that you can hang people merely for revenge." If he had had that opportunity he would have come to the same conclusion as the majority of this House came to, including quite a considerable number of hon. Members who do not sit on these benches—the whole of the Liberal Party, with one exception, and quite a number of Conservative Members, some of whom collaborated with us most usefully in the early preparation of the Clause and the organisation of the Debate.
It is really very wrong for the right hon. Gentleman to complain of it now. Let me say to him—he talks about being logical, rational and reasonable—[An HON. MEMBER: "Elementary."] Perhaps that is a good thing too. We are entitled to know what he really believes, whether he calls it logical or not, and I should like to know from him, if he were satisfied that the death penalty could be abolished without increasing the number of murders, whether he would wish to retain it?

Hon. Members: Answer.

Mr. Churchill: It is a hypothetical question. I am quite sure that in the present state of affairs it would have been much better to leave matters where they were, as the Government proposed.

Mr. Silverman: Of course the right hon. Gentleman is entitled to say that he prefers not to answer and if he prefers not to answer, I will not press him, but at his time of life and with his length of membership of this House he must not think he can answer a question in that way and persuade anyone that he is doing anything but evade the question. I ask him again: In his opinion does the death penalty remain justifiable even where it is unnecessary for the protection of society, or is it only the protection of society that justifies it? This goes to the root of the question. We must make up our minds about this before we can begin to examine whether any proposals are right proposals, or not. Will the right hon. Gentleman tell us? I will repeat the question in case I was not understood, or was not heard. I am doing my best to make myself both


audible and clear. I ask, does the right hon. Gentleman agree that the sole justification for retaining the death penalty is that if we have it there are fewer murders than if we do not have it? Is that right, or wrong?

Mr. Churchill: If I were assured that abolishing the death penalty would bring all murders to an end—[HON. MEMBERS: "No."]—I would certainly be in favour of that course.

Mr. Silverman: I should not have troubled to waste the time of the House in order to ask that question. Of course we would all be in favour of anything that abolished all murders. I ask the question again and perhaps we may get a plain answer some day.

Mr. Hogg: On a point of Order. I really do not want to prolong a discussion that may be out of Order, but it occurs to me that what we are discussing now is a proposed Government Clause which does not propose to abolish the death penalty but expressly proposes to retain it in certain cases. I submit that this elaborate inquisition as to whether or not my right hon. Friend would in certain circumstances be in favour of the abolition of the death penalty is no more in Order than if we were to discuss at length the whole of the various arguments we went into some two or three months ago. I should like your Ruling, Mr. Deputy-Speaker, because it may well affect the nature of what some of us want to say on this question. I should Ike your Ruling for our guidance as to how far we are entitled in this Debate on this Clause—and it is a matter of some difficulty to me—to reiterate the arguments in favour of or against the original Clause which we were discussing three months ago.

Mr. Deputy-Speaker (Mr. Hubert Beaumont): If I have gathered rightly what the hon. Member has said, which was difficult owing to a certain amount of noise in the Chamber, I have not yet heard anything said by the hon. Member for Nelson and Colne (Mr. S. Silverman) which was out of Order.

Mr. Silverman: In case the question has been forgotten, may I perhaps repeat it? I should like to know from the Leader of the Opposition whether it is

his view that even though the death penalty could be abolished without increasing the number of murders, it would still be right to retain it?

Mr. Churchill: Certainly I should not consider the grounds which the hon. Member advances as sufficient justification for altering the long-established custom.

Mr. Silverman: I still do not know what the right hon. Gentleman means. I am putting a perfectly plain question to him. I do not know whether the right hon. Gentleman is ever capable of a monosyllabic answer to anything, but it ought to be possible to give a monosyllabic answer to this. I am putting a perfectly plain question to him. [An HON. MEMBER: "It is a hypothetical question."] Certainly, it is hypothetical. We are dealing with the future. It is just as hypothetical to say that we cannot withdraw the death penalty without increasing murders as to say that we can withdraw it without increasing murders. But those are hypotheses we have to weigh, as best we can. We have to find an answer to them and I want to know what is the answer of the right hon. Gentleman. I ask, if he is satisfied, as so many countries have been satisfied, as the Royal Commission of this House was satisfied in 1930, that the death penalty is not necessary in order to protect society, that we could abolish it without affecting the rate, or the number, or the incidence of murders, or crimes of violence; if he agrees with all those countries and all those witnesses and with the Select Committee of this House, would he still think it right to retain the death penalty for some other reason?

An Hon. Member: He said "Yes."

Mrs. Middleton: "An eye for an eye."

Mr. Silverman: Does he say he would retain it, or not?

Mr. Churchill: The hon. Member has occupied 10 minutes—

Mr. Silverman: It is not my fault.

Mr. Churchill: —in asking the same hypothetical question of me across the Floor of the House. I have made my speech, and a very long one. I have certainly not any intention of taking up the time of the House in dealing with this


hypothetical question. I should have thought that my position was very clear from what I have said, that it is a great mistake that the Government have made to disturb the practice which was going on when this Parliament came in.

Mr. Silverman: If the right hon. Gentleman was so careful of the time of the House, he could have conserved a great deal of it by answering in one word. He could have said "yes" or "no," but he does not say "yes" or "no," because he is not prepared to face up to the issues in the question. All he wants to do is to make a little capital out of a party political question so that it will make it easier for him when the quarrel with the Lords arises on other issues. He thinks he is on a good wicket and that because the gentleman who manages a N.A.A.F.I. thinks it is Christianity to have "an eye for an eye" it will make it easier for him, some day or other, to persuade the people of the country that the Lords are right and the Commons wrong on other issues. That is why he is not prepared to look at the question on its merits. I do not propose to press him further on the point.

Mr. Henderson Stewart: Will the hon. Member give way?

Mr. Silverman: No, I will not.

Mr. Stewart: Why not?

Mr. Silverman: Because I do not want to take too long. But if the hon. Member wishes to put something to me I will give way.

Mr. Stewart: I think it would be helpful to the practical outcome of the Debate if the hon. Member addressed precisely the same question to the Government, as they are the persons who should answer it.

Mr. Silverman: I have already said that in my opinion the Government took the right attitude about this from the beginning and are taking the right attitude today. Their attitude was that on a matter of this kind it would be wrong for the Government to give a strong lead on policy or call upon the party loyalties of anybody. It was much better to leave it to a free vote of the House of Commons because that was the best way of ascertaining what instructed and careful and conscientious public opinion was and,

having ascertained what that view was, then to adopt it and make it Government policy.

Mr. Henry Strauss: This is another Clause.

Mr. Silverman: I know there is another Clause on the Order Paper. I can read too, and I will come to that. Up to the stage to which I have so far gone, the Government said: "Let the House of Commons decide it on a free vote of the House and then we will adopt it as our policy," and that they did. I contend that is right. What I complain of in the Opposition is that, being a party to the same arrangement, and having consented to it, then, being dissatisfied with the result, as some of my right hon. Friends were, they did not play the game, although the Government did play the game. Certainly. The Government undertook to adopt the result whether they agreed with it or not. The Opposition undertook to adopt the result whether they agreed with it or not. The Government carried out the bargain, the Opposition did not.
Now we come to what subsequently happened and the Amendment to that Clause which the Government are now proposing. All this falls in very well with what Government policy had been. When this Bill went to the House of Lords it was found that a large majority of them, especially those who never come to the House of Lords on any other matter or at any other time, were against this proposal. They found that their conscientious convictions would not allow them to remain at home on this question. They had to come along and vote for the retention of the gallows, as the right hon. Gentleman votes for the retention of the gallows.

Mr. Churchill: And as the hon. Member is going to do tonight.

Mr. Silverman: As I understand it, the right hon. Gentleman is going to vote for the gallows even where he does not believe it to be necessary.

Mr. Churchill: The hon. Member is going to vote for the gallows even though it is abhorrent to his conscience.

Mr. Silverman: I have not said what I am going to vote for yet. The right hon. Gentleman is presuming a little. I


shall say in a moment what I am prepared to vote for, on what terms and why. At the moment, I am dealing with the question that was put to me about the Government's attitude.
Having heard from the House of Lords that there were crimes which were not in themselves more blameworthy than others but which, nevertheless, by their very nature, caused in the public mind a degree of revulsion which other crimes equally blameworthy did not, the Government have said, "We wish to restore Clause 1. We wish to try this experiment of suspending the death penalty for five years but we will, in deference to the opinions expressed by judges and bishops and others in another place, and to meet their criticisms and ease their anxieties, make a number of exceptions." I think that the exceptions to be found in the Schedule are precisely the exceptions to which speakers in the House of Lords Debate called attention, and for which they asked.
I read in "The Times" the other day a letter by Lord Simon in which he poured scorn on the inclusion in the Schedule of the systematic poisoner. I shall have a word to say about the systematic poisoner in a moment. I attended the House of Lords throughout the Debate, and I heard Lord Simon's speech, and unless I misheard the Debate I thought it was Lord Simon himself who called special attention to the horror in the public mind of the systematic poisoner and to how wrong it would be to exempt him from the death penalty. It is a little hard on the Home Secretary and the Government, whatever I might think about the proposal on the grounds of pure logical consistency, for a man to make a complaint, to level a criticism, to voice an anxiety, and then complain when it is met and use the fact that it has been met, as an argument for rejecting the compromise. That is equally true of every one of the things in the Schedule.
I said that I would say a word about the systematic poisoner. I do not think that there is any justification for the death penalty except deterrence. I think that its efficacy to prevent murders is its only justification. I think that of the people who are not likely to be deterred by the threat of the death penalty the systematic poisoner is the first. He is a systematic

poisoner because he does not expect to be found out and the deterrent effect of the penalty has nothing to do with him. As a matter of fact, unless I am greatly mistaken there has not been a case in the courts of a systematic poisoner since the case of Mrs. Bryant in 1936. But this crime was put in the Schedule, and I understand why it was put in—because the public naturally feel an increased horror, as anyone would, as between a man who commits one act by which somebody dies and a man who, month by month, week by week, day by day, makes up his mind afresh to kill someone, makes a new intention to kill, commits a new fatal act. Of course people are horrified by that. If hon. Gentlemen say that we ought not to go too far ahead of public opinion, and if we are picking out the cases against which public opinion would most revolt, obviously the systematic poisoner is one.

Mr. Beverley Baxter: Has it occurred to the hon. Gentleman that in the case of a systematic poisoner the would-be victim has a chance to grow suspicious after a few weeks that he or she is being poisoned and can leave home or seek advice? The immediate poisoner gives the victim no chance at all.

Mr. Silverman: In that case I imagine there never would be any systematic poisoning. It would be difficult to understand how people could do it, and, in fact, few people do.
The point I am making is that the principle on which these exceptions are founded, the quite understandable principle—I do not say defensible, that is another matter, but quite understandable principle—is that if we are trying to bring people along to accept things which we think they ought to accept, but which as yet they do not accept, we have to take account of matters which seem to them to be the hardest stumbling blocks, the greatest handicaps. We have to satisfy them on points of this kind. I would not do it myself. I am not pretending for a moment that this Clause can be defended on any rational or logical principle. Of course it cannot. If I say, as I have repeatedly said, that only the deterrent effect of the death penalty justifies its retention, I cannot distinguish between different kinds of murder. Certainly it cannot be done on any logical or rational basis or principle.
The whole case against Clause 1 as it left this House was, like the case being made against the Government, that it was too logical and too rational for public opinion. I know that there were people who did not think so, I quite accept that. I know that the hon. Member for Oxford (Mr. Hogg) and the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) and a great many others took the other view.

Mr. Boyd - Carpenter: Would the hon. Member allow me to clear this point up? I did not have the good fortune in that Debate to catch Mr. Speaker's eye.

Mr. Silverman: The hon. Member did have the good fortune of delivering his judgment in the Division Lobby where, I understand, his vote was cast against the new Clause. I do not complain at all. The hon. Member always looks at a case fairly and squarely and makes up his mind on understandable grounds—I do not often agree with him, but that is by the way—and I know that he did that upon that occasion, and that he decided that the case for the suspension of the death penalty was not made out. He voted the other way, as he was entitled to do, and I make no complaint of that. I am saying that a great majority or, at any rate, a sizable and significant majority of the House of Commons decided otherwise.
Now the question is, what should those of us, who do not believe that this is a logical or rational Clause, do about it at this stage? I say at once that the right hon. Gentleman did correctly anticipate what I was going to do. I shall vote for this Amendment. I shall explain at once why. Because it is the only choice. The only choice that is left to this House is between more hangings and less hangings. If I had the opportunity of retaining Clause 1 as it stood, I should obviously prefer to retain it. On the first vote that Mr. Speaker will put from the Chair tonight, that we disagree with the Lords in their Amendment, I shall vote enthusiastically in support of the Government.
When it comes to the second vote I shall vote for them, but not enthusiastically. I shall then have to decide for myself, as a matter of conscience, whether I am entitled to preserve my own, shall we

say, intellectual integrity, by voting against a compromise which I cannot rationally justify, and, by so doing, at least double the rate of executions between this date and the next opportunity that Parliament is likely to have—perhaps not for a generation—of dealing with this matter again. In those circumstances, though I do it reluctantly and with misgivings, I cannot feel that I have any option.
It was said by the right hon. Gentleman that this would make very little difference. He is mistaken. Those of us who have looked at the matter, not as a matter of party controversy, but as a matter of the penal code, will have looked at the actual cases over the past four years. So far as I can make out, of the 51 executions that have taken place in the past four years under the existing code, in 28 there would have been no capital sentence at all, had this compromise Clause been the law.
But that is not the whole of the story, because the Clause does one thing which I thought everybody would have agreed to. I am sorry to see that the hon. Member for Oxford (Mr. Hogg) has an Amendment down on this specific point. I should have thought that nobody in this House would wish that a man should be hanged on the gallows for a murder he never intended to commit. Is there really anybody who wants people to be executed, at this time of day, in this country, for murders that there was never any intention of committing at all?
I say that if that particular part of the Clause had been the law during the past four years, then it is very doubtful how many capital convictions there would have been in the other 23 cases. If we apply that yard-stick, not to the abnormal period of the past three or four years, but to the period more nearly approaching normality of the 20 years between the wars, I think it is quite safe to say that had this Clause been the law, the number of executions would have been reduced by two-thirds or more. As a matter of conscience, whether I am to vote for that Clause which will reduce the number of executions in normal periods by two-thirds, and begin to reduce them now, or whether I am not, again I do not know what others will do, but I shall vote for reducing where I cannot vote for abolishing.
May I say one word to the hon. Member for Heywood and Radcliffe (Mr. Anthony Greenwood)? He has an Amendment on the Order Paper which you, Mr. Speaker, said could be referred to in the course of this discussion. He wishes to retain Clause r, subject only to the modification that it shall not come into operation until the Home Secretary desires. All I can say about that is that if that had been offered to me by the Government as a compromise I should have rejected it. I say to hon. Members on this side who feel so strongly on this matter, as I do myself, that it is not enough to have a demonstration on the statute book. What we want to do is to stop hangings, and to begin now.
We are doing that if we pass this Clause. We are not abolishing all hangings now, but two-thirds of them, and we are beginning at once. Under my hon. Friend's Clause the hangings would go on until there came a time when some Home Secretary felt that he was entitled to do, on his own initiative, what Parliament had not the courage to do. I say that that is a burden that this House has no right to place on the shoulders of one man. It is hard enough to decide in individual cases whether executions shall be carried out or not. To ask a single individual to carry out what can only decently be carried out by an Act of the Legislature, is to ask of that man more than any man should be asked to do. It is laying upon his conscience a burden that no individual can bear.

Mr. Anthony Greenwood: Would not my hon. Friend agree that on capital punishment, the Government are indivisible?

Mr. Silverman: I do not know. I do not think they are. On the matter of reprieve, as I understand it the Cabinet have nothing to do with it at all. I know that my hon. Friend might say it would not be one man who decided whether it should become operative or not, that that is only nominally in the Clause, and that the Cabinet of the day would have to decide. That reduces the strength of my argument to some slight extent, but not very much. If I understand the argument, logically, we would have to say, "It is not the Home Secretary at all, but the Cabinet; and it is not the Cabinet at all, because it is the party that supports the Cabinet." And so we are back to the House of Commons which is to decide it.

And if the House has to decide it, then decide it now—why wait? That is the argument I would advance on that matter.
I think there is something in the criticism of the Government on the ground that they appear, in the House and in the country, to have changed their minds several times. I think I know why they did, and I have said something about that already. I do not complain of it, but I do say to my right hon. Friends on the Front Bench that if they call upon those of us who carried this Clause to abandon some part of what we achieved by it, as part of a compromise and part of an attempt to deal with a difficult political situation, then at least it ought to be quite clear that that is the last concession that anybody is to be asked to make on this subject.
I shall vote for this Clause, and advise my friends to do so, only on the clear understanding and confidence that the Government, having persuaded us to abandon some part of what has been achieved, and having got, as I am sure they will get, the overwhelming majority of support of the House of Commons for this compromise, will, in another place, whoever may oppose them and whatever the difficulties, insist that at last the House of Commons on this matter shall have its way.

6.40 p.m.

Mr. Boyd-Carpenter: It was in the latter stages of his speech, which at some stages appeared to suggest an attempt to talk out this Measure, that the hon. Member for Nelson and Colne (Mr. S. Silverman) desisted from his attempts to give the House the views of hon. and right hon. Members other than himself, and came down to the more material consideration of the attitude which he was himself going to adopt in this matter. It was just as well that he did, because I fully understand the great difficulty in which the hon. Member for Nelson and Colne finds himself, and which is no doubt the explanation of the lengthy, but, I am glad to say, ultimately successful wrestle with his conscience in which he has just been indulging.
On the previous occasion the hon. Member for Nelson and Colne committed himself very fully on this matter. The hon. Gentleman said:


It was, I think, Lord Sumner, who once said—and I think that this is one of the cardinal factors in the controversy—that until human judgment is infallible, we have no right to inflict an irrevocable penalty."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 9818.]
As the hon. Member for Nelson and Colne has been arguing this afternoon for an intention to vote in favour of an irrevocable penalty, I think it would have been just as well if the hon. Gentleman had spent a little more time discussing, and indeed justifying, his own attitude than in attempting to cross-examine my right hon. Friend the Leader of the Opposition in a manner rather reminiscent of a provincial police court. The hon. Gentleman must face up to a very serious matter—as must many of his hon. Friends—and it is just no use his attempting to divert attention from that grave difficulty in which he finds himself by going into all sorts of subsidiary arguments.

Mr. S. Silverman: I do not know what the hon. Gentleman calls a subsidiary argument. I rather thought that I had made my position perfectly plain. What I was saying was that I still believe what the hon. Gentleman quoted. I think that we ought tnot to inflict an irrevocable penalty. I am against it. If there is any way of ending this irrevocable penalty altogether. I should be for it. The vote tonight will give me one opportunity to say so, and I shall take it, but after that I am left with the choice of voting for more hangings or less hangings, and I shall vote for less hangings. Does the hon. Member wish me to vote for more?

Mr. Boyd-Carpenter: The hon. Gentleman has simply repeated the concluding passages of his speech. I referred to his subsidiary arguments and he challenged that phrase. I am perfectly willing to withdraw the word "argument." They were certainly subsidiary, but they were not arguments. In particular, there was that amazing parody of Lord Simon. Apparently the hon. Member for Nelson and Colne takes the attitude that when a noble Lord in another place draws attention to the evil of permitting a systematic poisoner to go free, that implies an acceptance by that noble Lord of the desirability of allowing what I might term a once-for-all poisoner to go free. That appears to be his argument

and it need only be repeated for its fallacy to be demonstrated. Except perhaps for the hon. Member for Nelson and Colne, most hon. Members and noble Lords put a limit of time on their speeches. Therefore, they can only draw attention to the more conspicuous evils of the matter. It really is the most arrant nonsense for the hon. Member for Nelson and Colne to try to ride off on these subsidiary matters.
I challenge him only on one further point. He said, not once but several times, that the Opposition had undertaken to accept the result of the vote on 14th April. I should be very grateful if the hon. Member, to refresh at any rate my mind, would tell me when, in what words, and through whose mouth that undertaking was given. So far as my recollection is concerned, it is perfectly accurate to say that the Home Secretary gave such an undertaking on behalf of the Government. I make no comment on that. But I have no recollection—and perhaps the hon. Member has now had time to turn up the reference—of any official undertaking on behalf of His Majesty's Opposition to accept the result of a vote which was not taken on party lines at all but on which, as it so happened, a great majority of His Majesty's Opposition voted for the retention of capital punishment.

Mr. S. Silverman: If I went too far, I shall be very happy to withdraw and to express my regrets for having done so. My authority for my statement is this: when the Home Secretary announced the decision of the Government, he was, unless my recollection is at fault, followed by the right hon. Member for North Leeds (Mr. Peake), who said that he thought that the proposal of the Home Secretary was an admirable one, that for the Opposition he accepted it and that on his side, too, the Whips would not be put on because he thought that this was the proper way of dealing with the matter. I am afraid that I was bold enough to infer that if a man thinks that a certain course is the proper way of dealing with a matter he accepts it, but, of course, if he thought it was the proper way of dealing with it but wished to reserve the right not to accept it, I suppose he would be within his rights.

Mr. Boyd-Carpenter: That is really the most fantastic argument. The hon. Member is saying that if one accepts a certain


procedure as the right procedure to follow on a particular occasion one is to be bound forever after by the result of adopting that procedure.

Mr. S. Silverman: rose—

Mr. Boyd-Carpenter: No, I will not give way again. That is precisely what the hon. Gentleman is saying. What I asked him for—and he has not attempted to answer—was any statement made on behalf of His Majesty's Opposition that they would accept the result of the vote on 14th April. Any amount of comment on what my right hon. Friend may have said about the procedure to be followed on 14th April is really quite beside the point. I stress this matter because the hon. Member for Nelson and Come attacked my right hon. Friend the Leader of the Opposition at great length on precisely the ground that he was suggesting that my right hon. Friend had backed down from an undertaking. When I asked what the undertaking was and when it was given, all the hon. Gentleman did was to go into certain irrelevant observations made before the decision was taken on 14th April and at a time, therefore, when no hon. Member knew what that decision would be. [Laughter.] The hon. Gentleman laughs, but how could there have been any such undertaking? I will ask him once more to give the reference in HANSARD of the statement made on behalf of His Majesty's Opposition that we accepted the decision that capital punishment be abolished.

Mr. S. Silverman: I will do my best for the hon. Gentleman, as I have done. I cannot think that the right hon. Member for North Leeds (Mr. Peake) will thank him for what he is now doing. I repeat that if one says that what the Government propose is the proper way of reaching a decision, nearly everybody except the hon. Member will imply that one will accept the decision. It is irrelevant to say that one did not know at that time what the result would be. It is like going to court and saying, "I will accept the judgment of the court provided it is in my favour." Of course, none of us knew what the decision would be. We all accepted the proposal of the Government to test it out and abide by the result, and I think that the right hon. Gentleman who accepted the proposal intended it to be so understood.

Mr. Boyd-Carpenter: The hon. Gentleman has simply repeated what he said before, and that is a frank admission that no undertaking whatever was given to accept that result or to abide by it.
The very fact that we are holding this Debate is a considerable tribute to this House and to this country. It is really remarkable that at a time when millions of men are in grave danger, at a time when persecution and ill-treatment are to be seen all over the world, this House of Commons should solemnly be debating whether or not ten or eleven people a year—all of them people for whose crimes, as the Home Secretary said, there has been no possible excuse—should or should not be hanged. It is a remarkable tribute to this House and to the humanity of the British people that we should be seriously concerned about that at this moment. It is a matter upon which it is right that every one of us should seek to add such contribution as we feel it in our power and our experience to add.
I cannot claim the experience of the legal profession and of the courts which many of my hon. and learned Friends and hon. and learned Gentlemen opposite can claim, but I can claim one item of experience which perhaps is a little rare. It has not fallen to me to appear as counsel very often in cases of this type, but it has fallen to me to impose capital penalties. As president of military courts in Italy towards the end of the war, a very considerable responsibility fell upon me—a heavier responsibility than that which falls upon His Majesty's judges in this country, since my colleagues and I had a discretion in all such cases as to whether we did or did not impose the capital penalty.
The difficulty was made the more trying by the fact that the people with whom we were dealing were, generally, people for whom, as men, we could not but feel the highest admiration. They were not the misanthropic misfits and ill-adapted persons to be found in the criminal courts of this country. They were mainly people who had run great risks in support of the cause in which they believed, and I recollect at this moment, the sergeant-major of the Italian parachutists from the North, whom it fell to my lot to sentence to death at Bari in September, 1944, who took the supreme sentence with a dignified bow to the court and died with the words "Viva Italia


Fascista" on his lips. We were dealing with people for whom we had the profoundest regard.
When I say that I support, in general, the present state of the law in this country, I am therefore not in any comfortable ignorance of the strain imposed on those who have to deal with these matters. I think it is right to say that, because there has been much ill-informed discussion obscuring the facts as to what that responsibility is; but the fact is that, while it is a responsibility which no person of sensibility undertakes without a good deal of discomfort, it is not one that is beyond ordinary human capacity to undertake, and I feel that there was a little unnecessary extravagance in the rhetoric of the learned Attorney-General's concluding passage when he sought, on somewhat emotional grounds, to confuse this issue. It seems to me that his peroration would have been far more appropriate to the support of a Motion to abolish capital punishment than to this Motion.
For we are not mainly concerned tonight with the question of capital punishment or no capital punishment; nor are we concerned, as the learned Attorney-General suggested, with the question whether it is necessary for as many people as at present to go to the gallows. That is not the issue. The issue is whether the Clause which the Attorney-General is putting forward on behalf of the Government does or does not amount to an improvement of our English law. That is the practical issue which he seemed to confuse, both by his rhetoric and the somewhat misleading observation to which I have just referred.
If one looks at this Clause, one sees that it fails, as I believe any such attempt must fail, in its purpose. It is an attempt to compromise between those people like the hon. Member for Norwich (Mr. J. Paton), who believe that capital punishment is a foul thing, unjustified in any circumstances whatever, and those who believe that it is a useful and powerful deterrent. I do not believe that a compromise between those two fundamentally opposed points of view is possible. On 14th April, the hon. Member for Norwich—whose patent and manifest sincerity we all respect—said:
I believe capital punishment is a foul thing. I believe it to be an unmitigated evil

in our community, a centre of pollution sending out constantly-spreading ripples throughout our whole community."—[OFFICIAL REPORT, 14th April, 1948; Vol. 499, c. 1014.]
The hon. Member for Central Leeds (Mr. G. Porter) said in the same Debate:
… I feel that the actual carrying out of the penalty of hanging is a crime against humanity and a crime against the social conscience of the whole nation."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1053.]
One cannot compromise between that attitude, which everybody respects, whether one accepts it or not, and the attitude of those who say that this deterrent must be maintained. All that the Attorney-General has apparently sought to do has been to retain capital punishment in those cases in which public opinion is perhaps a trifle inflamed and to get rid of it in others. It seems to me to be an untenable compromise. The Attorney-General refused to face up to a perfectly straight moral issue. The moral issue which has faced civilised communities for centuries is whether they are entitled to kill or not. If we come down on the side of those who say, with great reluctance and regret, that it is necessary for the State to take the power to kill in order to protect the community, it is essential to provide that the penalty shall be imposed intelligently and efficiently and not merely in a manner which appeals to the whims of public opinion.
If one looks at this Clause, one sees the complete inconsistency of it, and of the principle claimed in its support. What is the justification for differentiating between the systematic poisoner and the once-and-for-all poisoner? The Attorney-General referred to cases of suicide. It is perfecty true that the suicide pact is sometimes undertaken by poison, but is very often undertaken by the use of the gas oven. It really is carrying the matter to the point of the ludicrous to say that, if one gives a sufficient dose on the first occasion to kill, one will survive, but that, if one under-estimates the dose on the first occasion and has to give a second, one will be liable to be hanged.
There is also the inevitable practical difficulty of administering the provisions in each system. Let me take by way of illustration a case which has already been referred to—the case of the steward on the Union Castle liner who, after murdering a girl passenger, pushed her body through a porthole into the shark-infested seas. I do


not believe it would be possible under this Clause to convict that man of what is now called first degree murder. It is true that one could allege that one of the other offences mentioned in the Schedule had been committed on the body of this girl, but one could not prove that. The body of the girl was in the ocean. There was no conceivable evidence, not a scrap of evidence of that other offence, and therefore we would have had this horrible crime, in its way one of the most ghastly in recent years, apparently treated under this Clause as second degree murder, or, as the Attorney-General puts it, of a less heinous character.
The more one looks at this Clause, the more one is forced to realise its inadequacy for the purpose for which it was designed. It is not sufficient to make it a capital offence for a man who shoots his way out of a robbery. Are we not making it all the more important for a man, if he shoots at all, to shoot sufficiently effectively in order to secure that there is no evidence of that robbery and that the witness's mouth shall be closed? Are we not involving ourselves in all these complex technicalities for no reasonable purpose whatever?
The Home Secretary, on 14th April, gave a most impressive description of the actual working of the present system, and he made it abundantly clear to anyone who is prepared to listen to reasoned argument that, in fact, the death penalty was only imposed, as he put it, in cases where there was no possible excuse for the crime. That is the system as it has been evolved in this country over a number of years. Is it not retrogressive to proceed from that flexible, efficient and humane administration of the law to a system in which we surround these difficult questions with a maze of abstruse legal technicalities, some of which may be overcome by the ingenuity of the judiciary, but all of which serve merely to confuse the issue in the minds of the people of this country and indeed in the minds of prospective criminals themselves?
That, surely, is the issue before us at the moment. It is not whether we should kill or not; it is simply whether we should kill by law if we satisfy certain elaborate conditions, or whether we should kill by law where a Home Secretary of experience,

aided by experienced and humane-minded officials, decides that it is right to carry out the penalty. I am not saying that everything is perfect. I hold views in favour of many reforms, not the least of which is as to the actual method of execution. I think that hanging is an archaic, horrific, and degrading method of execution; I believe there are cleaner, less trying, less painful methods which modern science has evolved, but, of course, I should be out of Order if I pursued that matter further.
On this point, while supporting the existence of the present law, I am not excluding the possibility of appropriate action, but we are at the moment concerned with the Government's Clause. That Clause is itself an attempt to compromise between every irreconcilable point of view. It is the result of an ill-matched union; it is clumsy, ill-drafted and will cause difficulties in the courts. It will diminish the deterrent effect of having the death penalty on the Statute Book, and will please nobody in this country except, perhaps, a very small class—those who intend to commit the crime of murder.

7.2 p.m.

Mr. John Paton: I do not wish to detain the House too long because I explained my view on this subject very fully on the first occasion on which we debated it. Therefore, I do not propose to attempt to cover a great deal of the ground that has already been covered by previous speakers. For instance, I do not propose to attempt to enter into the completely futile and irrelevant controversy as to who was right and who was wrong in the matter of the free vote on the last occasion. What in Heaven's name that has to do with the question now before us I just do not know. There was a whole series of utter irrelevancies in the speech of the right hon. Member for Woodford (Mr. Churchill), but, again, I do not wish to follow him into the realm of irrelevance; I want to get to the things which I feel I ought to say.
I must confess to the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) that I am wrestling with a conscience. I thought I detected a cynical sneer in the hon. Member's remark that my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) was wrestling with his conscience. I do not know


whether the sneer was forthcoming because my hon. Friend was the possessor of a conscience, or just because he was wrestling with it. I am going to confess that I have been having a wrestle with what I believe is my conscience, and in saying that, of course, I am quite prepared to endure the sneers of hon. Members opposite.
I am in a position of very great difficulty and perplexity, and I frankly confess it. I stand tonight exactly where I stood on 14th April. I stand by the words I then uttered, quoted by the hon. Member for Kingston-upon-Thames, that the death penalty is a foul thing. It was because I thought that on 14th April that I spoke and voted as I did. Nothing has happened since which has changed my point of view. All the subsequent happenings and the adverse decision in another place have not made me change my mind. Indeed, when did another place at any time in the last 100 years ever do anything but throw out the successive stages in the humanisation of our penal code? The action of the other place was precisely what I expected it would be.
We have had a clamour from our less responsible newspapers. I anticipated that. When did they ever do anything else but clamour about the crime of murder? We have had the Gallup Polls of ill-informed public opinion upon which certain hon. Members tend to base their attitude in this House. All these things I expected; all of them I was prepared for, but they have not changed by one jot or tittle the opinion which I held on 14th April about the evil associated with the practice of capital punishment by a modern State.
In my view, the case that was made here for abolition stands completely unchanged and unweakened. The position I am in tonight is not that I am given a choice, once again, of voting for abolition or for the maintenance of the status quo. That is not the issue at all. The issue that I have to face tonight, and about which I have to make up my mind, as have other hon. Members who think as I do, is not the simple uncomplicated issue for or against capital punishment. The issue has completely changed. I profoundly regret the change, but nothing that I can now do can alter the fact that the change has been made. The Government have made a decision and have

made it plain to this House that they are proposing to stand by the Clause. If that Clause is accepted by the House, they are prepared to insert it in the Bill, and to back it in another place with all the force and power at their disposal.
But the Government have made absolutely plain—altogether too plain for my liking—that they will not stand behind a proposal to re-insert the original Clause. Therefore, I have to make up my mind whether or not I can tonight support a Clause which permits hanging to be continued. That, of course, is how it appears to many people. Am I, who am a convinced abolitionist and who believes capital punishment to be an unmitigated evil, to agree by my vote tonight with a limited form of capital punishment being permitted to continue? That is the issue now.
My hon. Friend the Member for Heywood and Radcliffe (Mr. Anthony Greenwood) has an Amendment on the Order Paper which, of course, as a Member of this House, he is perfectly entitled to put down, and to which he will speak. I wish to assure him in advance, however, that he will be completely wasting his time, and that the only thing which is before the House, and which will be determined in the Debate and the Vote tonight, is whether or not we propose to retain capital punishment in all its former glory, or whether we are now going to prune and limit it in an effective way. That is the issue as I see it, and that is why I have very reluctantly decided that I am not going to sit in my place tonight ostentatiously abstaining.
I am going to take the responsibility of the decision at which I have arrived, and I shall go into the Lobby in support of this Clause. I shall do so knowing that if this Clause is put upon the Statute Book, although it will, of course, continue a practice which I believe to be evil, it will, nevertheless, abridge and limit that practice in an extremely important and valuable way. Who am I to say that, because I cannot get rid of the evil all at once, I am not going to look at any possibility of limiting the evil? Because under the present system of the operation of capital punishment, for four years an average of nearly 13 men a year were hanged, whereas under the new Clause if it had been in operation over the same period an average of only a little over


five a year would have been hanged, who am I to say that, because my conscience is so tender, I shall allow the other eight men on an average to hang every year rather than go into the Lobby in an attempt to stop it? I have no hesitation, therefore, in advising my hon. Friends who take my point of view that it is a wise and sensible thing in the situation in which we find ourselves, with the choice that is now presented, to go into the Lobby tonight, and let us have, so far as we can, a united support behind the Government for even this half-measure which is put before us.
There are one or two other things that I want to say about the Clause itself. It is easy to ridicule a Clause like this on the score of illogicality, but that same case of illogicality—the ridicule that can be applied on grounds of illogicality—can be applied in the operation of the present law relating to murder. Every criminal lawyer in this House, as well as everybody who has studied this question, knows perfectly well of the cases in which an accused man was fortunate in his jury and sometimes even fortunate in his judge.
All of us could cite case after case in which one man went to the gallows and another went to penal servitude for life for precisely similar crimes. These things cannot be defended on grounds of logic. Practically every part of our criminal law is shot through with illogicality. Who can defend the illogicality, for instance, of the law with regard to larceny? If I steal £10,000 by simple larceny the maximum punishment that can be inflicted upon me is five years' imprisonment, but if I steal 2s. 6d. from the pocket of one of my hon. Friends here by larceny from the person, I can be given a maximum sentence of 14 years.
Fortunately, of course, as everybody knows, our judges limit the possibility of error arising from absurdities of that kind, but it should be noted by hon. Members that these illogicalities exist in as great measure as they do with reference to the Clause under discussion. Let us remember further that it is solely with regard to the punishment of this crime of murder that error caused by illogicality cannot be limited by the discrimination of judges, because once a verdict of wilful murder is found in a court no judge can do any other than sentence the culprit to death, although all of us know that the

degrees of culpability and responsibility with regard to the various crimes of murder are almost infinite. Therefore, this question of the illogicality of the Clause or its Subsections does not worry me over much, since it is in keeping with so much that goes on already.
I have already spoken a little longer than I intended. I want to finish by saying more or less what I began with. As I said, I believe that this capital punishment is an evil thing. I think it is an abhorrent punishment, and I am perfectly sure that the right hon. Member for the Scottish Universities (Sir J. Anderson) would never seek to challenge that statement. It is a loathsome and horrible thing for a civilised State to contemplate punishment of this kind and see it put into operation. I believe that to be true. I think, as a matter of fact, that a civilised State, having true regard for its standards of social conduct, should not dare to operate a punishment of this kind which I believe is positively evil.
I am fortified in that view by a quotation which I think I ought to give to the House, because it is a quotation of very high importance and expresses a point of view with regard to these matters in language of wisdom and sentiment so noble in character that I should like to enshrine it once again in the records of this House where it was first uttered many years ago. The words which I am going to quote were uttered by the right hon. Gentleman the Member for Woodford in a Home Office Debate in 1910. This is what he said:
The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm and dispassionate recognition of the rights of the accused against the State, and even of convicted criminals against the State, a constant heart-searching by all charged with the duty of punishment, a desire and eagerness to rehabilitate in the world of industry all those who have paid their dues in the hard coinage of punishment, tireless efforts towards the discovery of creative and regenerative processes, and an unaltering faith that there is a treasure, if only you can find it, in the heart of every man—these are the symbols which in the treatment of crime and criminals mark and measure the stored up strength of a nation, and are the sign and poof of the living virtue in it
There are wise words and noble sentiments, and it is with these thoughts in one's mind that I think we ought to approach this problem. It is because I


knew of these sentiments uttered by the right hon. Gentleman that I listened today with real regret to the speech with which he opened the Debate for the Opposition. I thought it was a deplorable speech, and I much preferred the young and sober Philip of 1910 to the not so young and not so sober Philip that we heard in his speech today. I think the reply to the speech he made today was contained in that quotation which I have read to the House. It is in that spirit and with these thoughts in mind that I regard even this new Clause, with all its imperfections, as at least a considerable step in the right direction, and I shall go into the Lobby in support of it this evening.

7.18 p.m.

Viscountess Davidson: It is always with very great interest that I listen to the speeches of the Attorney-General, but I must say that I resented very much some of the words in his speech. We do not bring politics into a question such as this, and we certainly do not bring politics into a question affecting the lives of men and women—a question of whether they die or live. The right hon. and learned Gentleman knows perfectly well that in the Standing Committee no politics were brought into the discussion. We are all speaking and acting today as we have done all through the Debates on this question—according to our own consciences.
Those of us who had the privilege of sitting in both the Standing Committees—one before the war and one since the war—are extremely anxious to see this Bill on the statute book. We believe that there are great possibilities when once this Bill becomes law. I am thinking particularly of how it affects children and young persons. We are very hopeful that once this Bill becomes law, the handling of young children and young persons will be a great deal wiser in the future than it has been in the past. We hope that by that means we may see growing up a different type of citizen who will not make the criminal of the future. But that will take a long time. The Bill has not become law, and when it has become law, it will be a long time before we are able to recruit sufficient specialised persons to handle these young people and obtain sufficient suitable accommodation. That is a long-term policy.
Perhaps in the future, perhaps even in our lifetime, it may be possible that we

shall all be in favour of the abolition of capital punishment because the new type of treatment given to the young offenders under this Bill will be showing results, but at the moment we are dealing with the immediate problem. As the law stands today, is the public safeguarded or not, and if capital punishment is abolished, will the public suffer?
I voted in favour of the retention of capital punishment. It is not that I want to see men or women hanged—certainly not—but I believe it acts as a deterrent. That is the reason why I voted as I did. As a Member of the Standing Committees and in other discussions, I have been very much impressed with the humanity of those who administer the law. It is not the case that those who administer the law want to administer it in a brutal fashion—far from it. Under the existing law every criminal has a fair chance of reprieve.
I do not, however, like this compromise. I am convinced that the country will not benefit by it. I am sure that the majority of those who disagree with me are absolutely sincere but when I was sitting in the Standing Committee I was worried by the lack of balance which appeared in their speeches and in their attitude of mind. That lack of balance was shown by the fact that, again and again, one felt they did not appreciate that the welfare of the 46 million citizens of this country who are not criminals was of far greater importance than the welfare of those who have committed a crime. Surely our responsibility is towards those who, after all, I am thankful to say, form the very large proportion of the population—those who have kept the law and are law-abiding citizens of the State.
We all have a very profound admiration for the Home Secretary, and when he spoke in Committee and on the Floor of this House we listened with attention. I know that he is absolutely sincere in his beliefs. I know that before the war, when we sat in that Standing Committee, he was in favour of the abolition of capital punishment, but I could not understand, having listened to his very fervent speech and heard his views on many occasions, why others who listened to him would not follow his advice when on the Floor of the House, he advocated the retention of capital punishment. I understood that he was expressing the


view of the majority of the Cabinet and that he considered that, with the growing figures of crime and the serious deterioration that has taken place in the morals of the country, this was not the right moment to do away with capital punishment. After he had spoken I felt sure we would see the large majority of those sitting behind him take his advice and follow him into the Lobby.
I rather thought that after what had happened in another place, after hearing the views expressed there, the Home Secretary would say to the House of Commons, "They have adopted the same attitude as I have adopted myself; the majority there believe—and I am certain it is the opinion of the bulk of the people in the country—that this is not the moment to remove capital punishment." I thought, therefore, he would advise the House to stand by the opinion expressed in another place. Unfortunately, we have become rather accustomed to witnessing weakness on the part of His Majesty's Government. We are becoming very accustomed to Ministers expressing views and then changing their minds when supporters behind them express different opinions. But I do not believe we have ever witnessed such an example of weakness as we have seen on this occasion.
I have the greatest respect for hon. Members who do not believe in capital punishment and stand by their opinions. This is a moral issue. Some of us believe that it is better to retain capital punishment for the sake of the safety of the public. Some, I know, believe sincerely that that attitude is wrong. I quite understand those who hold those views voting in favour of doing away with capital punishment and I respect them, but I cannot understand, and I do not respect those who, holding those views, propose today to vote for a compromise in which capital punishment is to be retained in part. I ventured to make a few remarks on the Second Reading of the Bill and, because I did so, I do not want to repeat those remarks tonight, but I see no reason to alter my decision. I intend, therefore, to vote against the Government tonight.

7.27 p.m.

Mr. T. J. Brooks: We have listened to a great deal of eloquence tonight on this question of hanging, and I personally agree with the sentiments which

have been expressed that murder is a crime against humanity. I would also say that hanging is a crime against humanity. I hope my remarks will not be misunderstood if I dwell a little on the spiritual side of this matter, because I am very sincere in what I am about to say.
Life is sacred. We have not the power to create it artificially, still less is it ours to take away. War-time expedients are no criterion for judging this matter; clearly, a man must fight for his life even unto death, but that is a far cry from deciding an issue in a court of justice in time of peace. The foulness of the crime may be established, but will a second death put it right? Will it bring back the victim to life? Will it compensate his kith and kin? Will it do anything desirable, save close a sordid chapter in his life? It will not even do that, for by capital punishment we settle nothing. All we do is to cast adrift in some other world another of the failures of this life.
Can two wrongs make a right? Murder is always impassioned, insane, revolting; clearly those who perpetrate it are unbalanced. They have lost for the time being the hold on their passions, allowed their emotions to get out of hand. But they are our responsibility, socially and morally. Learned counsel may seek to probe their motives. Judges may adumbrate on the enormity of their lust, but can the whole transaction be written off with the barbaric rites of the gallows? Unfortunately, there are still people to whom this world is the whole reality. To such, capital punishment must appear and offer a simple and sensible solution.
After all the arguments that have been heard in the House today, one question will still be decisive: Is human life sacred? Is it immortal? Is there a beyond? We cannot morally thrust our misfits precipitately into this other life. There is no way of washing our hands of them. Can the murderer get away from his victim? I submit that there is no escape. We ourselves here cannot get away from ourselves, go as high as we like or as low as we like. I repeat, the murderer cannot shake off his victim. If we want really to punish him, as has been said today, put him by himself, for conscience makes cowards of us all. Are not most of our mental patients in our institutions today suffering merely from obsession? That is a consideration that we ought to think of seriously.
I have often wondered why the bishops and our spiritual leaders in this country did not lead a crusade years ago against capital punishment. Is there no hope for the lost sheep? Apparently not. We must get rid of them. They are two or three, perhaps, in a million. We are still hearing the doctrine of "an eye for an eye and a tooth for a tooth." But the very basis, the very principle of every religion throughout the world is immortality. How can we account for the attitude of the spiritual leaders? Are they giving us a religion that is really unrelated to life?
Another argument of which much has been made is that the time for the reform is not opportune—that the time is not opportune for the abolition of the death penalty. But time has never been opportune for any reform, and that would not be denied by any of the hon. and right hon. Gentlemen on the Front Bench. I should like to quote an extract from "The Times," which, in November last, commenting on the absence of any provision in the Bill to deal with the question of capital punishment said:
The profound philosophical and theological principles that compel some consciences to stand out uncompromisingly on one side or the other are difficult to debate in Parliament. On the plane of politics, Parliament can scarcely do other than think in terms of high expediency, and ask whether, by the retention or the abolitiion of the gallows, it is most likely to diminish the frequency of violent death. It is fair, however, to impose the burden of proof on those who would retain it. Capital punishment is so repulsive that no civilised people would continue it unless convinced that there is no other means of protecting life. Moreover, the morbid sensationalism that surrounds the execution of the penalty is not only a most unhealthy social influence, but may actually deflect towards violence that self-dramatising vanity which so many murderers have been observed to display, Any debate will and should turn mainly upon an unbiased examination of the abundant evidence which may now be found in the comparative experience of countries, of like social conditions, which have or have not dispensed with the death penalty. Each side can make out a case, and, no doubt, both will be heard at considerable length; but it may be remarked at the outset that the majority decision among European and American States already supports the less drastic policy.
There is no evidence that countries that have adopted abolition are worse because they have abolished capital punishment. What proof have we that hanging anywhere in the world has been a deterrent?
The Criminal Justice Bill has been framed to treat the mind, particularly of our young people. We are to have better trained probation officers. They are to be appointed to guide and direct our young people of today. We are to have full and complete reforms of prison life. Flogging has to be abolished. Rehabilitation is the new order, and over the horizon there is a new outlook on life. But not for the murderer. He, it appears to be thought, is too far gone for any help or reform physically or spiritually. The House of Commons has decided to abolish capital punishment for a trial period of five years, but some bishops and law lords have said, "No." We are asked to obey their decision. The Government, in spite of the decision of this House, are asking now for a compromise to appease the hangman. I am reminded that Joan of Arc was burned at the stake as a witch, but that she was recognised by the Church after 500 years as a saint. How long are we going to employ the hangman?
If the executions were done in the open instead of behind closed gates, the public conscience would soon do away with this ancient practice. While we fully appreciate the reforms contained in the Bill, the major issue is still in doubt. Some of us are torn between two loyalities, loyalty to conscience and loyalty to the Government. I think it was Pope who said:
All are but parts of one stupendous whole,
Whose body Nature is, and God the soul.
If we could enter into that philosophy we should appreciate more and more the sanctity of human life.

7.38 p.m.

Mr. Derek Walker-Smith: It must be a matter of some gratification to the Patronage Secretary that, by happy coincidence, the conscientious resolve of hon. Members opposite who voted for the suspension of the death penalty is tonight in accord with dictates of the Government Whip. To me, I must confess, public references to one's conscience are somewhat distasteful. However, I do fully accept the position as laid down for so many years that a Member of Parliament owes to the House and to his constituents the exercise of his judgment. Therefore, I must start by saying that the exercise of my judgment in this case does not enable me wholly to associate myself with the


line recommended by my hon. and right hon. Friends.
I speak as one of those who on 14th April voted for the suspension of the death penalty for an experimental period. My position is rather different from that of, for example, the hon. Member for Norwich (Mr. J. Paton), in that I am not what he calls a "convinced abolitionist" who believes on religious grounds that it is wrong ever to forfeit life in that way. I cast my vote as one who sincerely believes that the natural march of human progress must, within a measurable distance of time, include this step; and it was in that conviction that I cast my vote that night.
We have had reference tonight, and rightly so, to the position arrived at since then as a result of the expression of public opinion. I agree that public opinion, so far as it is ascertainable, was against the decision that we came to that night. Of course, it is difficult, as the hon. Member for Nelson and Colne (Mr. S. Silverman) pointed out, to assess the exact force of public opinion on any issue; but, broadly speaking, I accept the position that public opinion was against that decision. Not that that means that that decision was wrong or that those who voted in favour of it were wrong. Social and legal reforms have to be judged not by the popular opinion of the day but by the popular opinion of the future.
That is the test which I personally always try to bring to bear on these matters. After all, popular opinion was, at one time, as hon. Members know, in favour of the slave trade, and the degrading spectacle of public executions, but no one now would say that public opinion at that time was right on these issues. Therefore, it does not mean that we were wrong to cast that vote the other night. What it does mean is that this would be an unfortunate and unfavourable time in which to start this experiment.
I agree with the Attorney-General that although it is not the business of Members of Parliament simply to follow what they deem to be popular opinion, they cannot disregard it, if they are convinced of its trend. I have to decide what it is my duty to do tonight. I believe, if the death penalty is retained, that probably the principle of two degrees in murder is

right. I say "probably" because I do not seek to be dogmatic about that. My own professional experience in the main has been in less dramatic and less sombre fields than that of the criminal law, and I speak with diffidence on this aspect of the question. But I believe in principle that is so. Nevertheless, it seems to me that the way in which this Clause is drafted is unnecessarily clumsy and complex, and that it will lead to contradictory results. It has exposed itself already to the ingenious and imaginative industry of Lord Simon, and there have been other references to the difficulties which it creates.
In my view, the definition of the hon. and learned Member for Chester (Mr. Nield) is preferable to and certainly a good deal clearer than that of the Government. I do not feel able to go into the Lobby with the Government tonight in support of this Clause. Nevertheless, I am equally clear that I cannot see my way to oppose this Clause in the Lobby tonight for the reasons which have been advanced and, no doubt, will be advanced against it. I cannot associate myself with any claim that no change is required or that no change should be contemplated in the death penalty; nor can I associate myself with the view that one should leave border-line cases to the administrative action of the Home Secretary. I do not think that it has ever been the view of the party to which I belong that the death penalty itself is inviolable and must not in any circumstances be amended.
We have the experience of Section 51 of the Children and Young Persons Act, passed under a Conservative Government and initiated by a Conservative Home Secretary, which did in fact do away with the death penalty for persons under 18. That was a modification of the death penalty in the case of murder, and one cannot therefore come to the House now and say that it is wrong or impossible in any way to lessen the scope of the death penalty in cases of murder. So far as administrative action goes, I believe that there must come a time when legislation should try to catch up with administrative action. We cannot forever be extending the scope of administrative action by way of the exercise of the prerogative of mercy, without, from time to time, reviewing the position and seeing whether in practice it is not right to make legislative provision


for what is in fact going on in individual cases by administrative action.
I am grateful to you, Mr. Speaker, for this opportunity of explaining my position. I personally rather regret a good deal of the controversy on all sides which has taken place on this matter. I think that there has been too much emotion, too much sentimentality and too much rhetoric, and I have steadily tried, when I have addressed myself to this subject, to eschew all those things. I regret that this is a party matter now. I hoped that it need not be a party matter at any time. The Government have put on their Whips; and I do not criticise my right hon. and hon. Friends for the action which they feel compelled to take. Speaking as an individual, I regret that this could not have ended as it started, as a non-party matter. If it must be a party matter, I in all honesty say that I regret that from our side we should appear to be quite as uncompromising in our general attitude to this question as, I fear, we will seem to be from our vote this evening.
Whatever the result of the Division tonight, and whatever another place will do, in 50 years' time, it is highly probable that either the death penalty will not exist or, if it does, that it will be governed by the principle of two degrees. I think that when the clamour of argument has abated hon. Members on all sides will realise that that is so. I think that that is the answer to the test which I strive to apply by projecting myself into the future and saying, "How will public opinion at that time regard the issues on which we are called upon to pass judgment in all our human fallibility today."
Although I do not agree with the majority of my hon. Friends on this matter, I claim to be in the tradition of my party in the view that I take. We have always sought in the tradition of Disraeli and Joseph Chamberlain to keep our minds open on these great questions of social reform, and I hope that we shall not close our minds to this problem, whatever our view of it may be tonight. It would I think be a regrettable thing if we should seem to close the door to the possibilities of the future by perhaps a too close acquiescence in the practices and, it may be, in the prejudices of the past. For that reason, I shall be unable to vote against this Amendment tonight, and I

must abstain from the Division that will take place.

7.49 p.m.

Mr. Anthony Greenwood: Although I agree with much that the hon. Member for Hertford (Mr. Walker-Smith) said tonight, he will forgive me for not following him in the argument he deployed. Similarly, I do not want to concentrate very much on what has been said on the other side of the House. Between those hon. Members, on the whole, and myself, there is a clear-cut division of opinion. Most hon. Members opposite believe in hanging. I do not believe in hanging. I prefer, therefore, to concentrate my attention on those hon. Members on this side of the House whose flexibility of conscience in this respect has left me breathless.
Although in criticising the Government tonight, I find myself in company with hon. Gentlemen opposite, so far I have heard only two points with which I have been in agreement. One was in the dislike which they have expressed for the Clause which my right hon. Friend has introduced and their doubts as to its workability. The other is in the sympathy which they feel for the Attorney-General in having had to perform a task which was clearly distasteful to him. I hope that it will be some consolation to the Attorney-General to know that, even at this late stage, there is a way out of the difficulty which confronts hon. Members on this side of the House tonight. That is, when later, I formally move the Amendment standing in the names of my hon. Friends and myself. I hope even at that late stage the Government will find it possible to accept this Amendment, in order that this important Measure may go to another place with the almost unanimous backing of hon. Members on this side of the House.
When this matter was discussed here on a previous occasion the hon. Member for Wood Green (Mr. Baxter) interrupted the Home Secretary and asked this question:
Suppose a Member of Parliament finds himself at variance with the majority opinion in his constituency, should he then speak and vote against his conscience?
My right hon. Friend replied:
No, he should not. I share the view of Burke that we are not delegates but, on


the other hand, one of our duties is to ensure in matters like this that we keep respect for the law alive in the hearts of people who have to submit to its administration."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1085.]
That statement of the Home Secretary makes it easier for me tonight to make this last stand for principles which I learned from my right hon. Friend the Lord President of the Council, from my right hon. Friend the Minister of Education, from my right hon. Friend the Secretary of State for Commonwealth Relations and other leaders of my party.

The Minister of Education (Mr. Tomlinson): indicated dissent.

Mr. Greenwood: I see the Minister of Education shaking his head, but unless my memory is at fault, in 1938 my right hon. Friend voted in this House in support of the abolition of capital punishment.
I say it makes it easier that on a previous occasion my right hon. Friend expressed that opinion. It is in the spirit of the view which my right hon. Friend the Home Secretary expressed on that occasion that I am hoping later to move the Amendment which stands in my name. I propose that Amendment, not merely on grounds of principle, but because I want to do what my right hon. Friend said then: to keep respect for the law alive in the hearts of people who have to submit to its administration. I do not believe that by putting on the statute book the Clause which my right hon. Friend has introduced tonight we are behaving in a way calculated to bring the law of this country into respect. Indeed, if my right hon. Friend is asking us to do one thing tonight, it is to drag the law of this country and the House of Commons into contempt and disrepute throughout the country.
The Attorney-General said that it was against the tradition of this country to attempt to codify the law. That is a very sound instinct, and a very sound tradition, because the extraordinary hotch-potch of inconsistencies and illogicalities comprised in the Clause which has been put forward is evidence of the kind of difficulty we get into when we attempt to codify the law on matters of this kind. I thought that it ill-became the learned Attorney-General to gibe at what he called the logic-chopping and hair-splitting criticisms which

he said were going to be made later in the Debate, because, after all, logic-chopping and hair-splitting criticisms are the very life-blood of the profession of which my right hon. and learned Friend is so distinguished an ornament. If it is not for us tonight to put forward these criticisms, my right hon. and learned Friend can rest assured that when this clause goes on to the Statute Book, if it does, it will be subjected in courts throughout the country to just such logic-chopping and hair-splitting criticisms by members of the Attorney-General's own profession.
My right hon. and learned Friend attempted to draw a comparison between the degrees of liability which we have at the present time and those which are proposed under the Bill as it is now proposed to send it back to another place; and he called attention to the distinction drawn at present between manslaughter and murder. It seems to me quite clear that the distinction between those two offences is essentially one of moral culpability. But nobody can attempt to justify the claim that there is any ground at all for distinguishing between the offences mentioned in the Home Secretary's Clause on grounds of moral culpability. I, unfortunately, cannot take a legal view of the Clause which is before us. As Mr. Speaker said on a previous occasion, I cannot take a legal view; I can only take a commonsense view of what is before me.
It seems to me that there are many inconsistencies in the Clause. I want to draw attention to three of them which have struck me, as an ordinary back bench Member of this House. The first, of course, applies to systematic poisoning, which has already been discussed to some extent. If I understand this Clause correctly, it is proposed to hang a man who kills somebody by administering three doses of arsenic, but not to hang somebody who gives a good stiff overdose of prussic acid. Where is the difference in moral culpability between the perpetrators of those two heinous offences?
To continue with the inconsistencies, I cannot see that it is less culpable to cut somebody's throat after the most careful and systematic planning of the murder—arranging the necessary circumstances, and providing oneself with an alibi—than to commit murder by any of the methods for which my right hon. Friend proposes


to retain the death penalty. The third inconsistency is that, if I understand the Clause correctly, if a man batters an old woman to death because he expects to benefit under her will, he will not be hanged; but if he batters her to death in order to steal half a crown out of her purse, he will be subject to the supreme penalty. Where is the difference in moral responsibility between the perpetrators of those two offences?
In any event, suppose my right hon. Friend is saying that capital punishment is a deterrent. Why should it be a deterrent for the perpetrators of some murders and not for the perpetrators of others? I can understand the point of view of the noble Lady the Member for Hemel Hempstead (Viscountess Davidson), who sincerely believes that capital punishment is a deterrent which should be kept for all cases. I can understand the point of view which was expressed in another place, that capital punishment should be extended to cover other offences for which it is not at present provided. But I cannot understand the attitude and the logic of my hon. Friends who say that capital punishment will discourage one form of murder, but apparently will not discourage another form of murder. That seems to me completely indefensible.

Mr. Donovan: Who says so?

Mr. Greenwood: My hon. and learned Friend asks, "Who says so?" That very distinction is implicit in everything said in support of the Clause which is now before us. But is not the truth this? The Home Secretary knows perfectly well that it is not capital punishment, or any kind of punishment, which is the deterrent in offences of this kind. The real deterrent is the fear of detection; the belief that a person will be found out. If we are to put an end to the wave of crime which we have at the present time, the solution is not to maintain hanging; the solution is to have an effective police force, properly manned, in order to protect the people of this country.
If we abandon the pretence that we are retaining capital punishment as a deterrent, what is the logical outcome? Is it the old cry of blood to blood? Are we getting back to the position where we are to keep capital punishment as a sop to the public, as a kind of retribution, as a

kind of revenge? Because if that is the attitude of my right hon. Friend and Members of the Government tonight, I say that is an interpretation which I cannot accept. Very humbly, I say that I prefer the old version of the Sermon on the Mount as it was delivered, rather than the attempt of my right hon. Friend and his colleagues to restate the Christian ethic in the language of the Home Office as used in the Clause before the House tonight.
Apart from these criticisms, why did we originally come to the conclusion that we did come to, about suspending the death penalty in this country? It was not a hasty decision. There were five months between the time the Bill was introduced and the time this question was discussed on the Report stage in this House. It is quite clear from the Debate which took place on that occasion that it was a decision taken with full knowledge of the consequences of our decision. The speeches which were made were sincere, as we believed at the time, and, indeed, extremely well-informed. It was probably one of the best Debates we have had in this Parliament. Now suddenly I find hon. Members on this side of the House evaporating, disappearing, running away from their own consciences which they paraded in this House only three months ago.
When I have looked back on what took place on that occasion, I have tried to analyse why it was that I went into the Division Lobby in support of the new Clause, so ably proposed by my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman), whose speech today would have been much better suited to a criticism of the Government's Amendment rather than a plea in support of it, as it purported to be. On looking back, I find that the motives which inspired me were these—that I did not believe we had any right to arrogate to ourselves the power of life and death over every man and woman in this country. I find myself going further and saying that we have no power to say that any of our fellow countrymen are incapable of reform. If they are incapable of reform, they are the victims of mental illness of some form or another. Men are not hanged because they have cancer or tuberculosis, and I see no reason why we should hang men for diseases of the mind.
We are at the very beginning of the development of brain surgery in this country and if hon. Members will look at the report issued by the Board of Control only last year they will find remarkable achievements already to the credit of that brain operation known as prefrontal leucotonomy. There have been a large number of cases of people, manic-depressives and schizophrenics, who have gone into hospital with a tendency to violence and have come out after the operation, once again ordinary, reasonable, co-operative, decent citizens. Are we to condemn our fellow men without making an effort to cure them and enable them to become decent citizens if it is in our power to do so?
I find, too, on looking back that I objected on the grounds of the effect that capital punishment has on society as a whole. The hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter) quoted part of what my hon. Friend the Member for Norwich (Mr. J. Paton) said on that occasion. May I complete the quotation, because I think it expresses movingly what most of us on this side of the House felt on that occasion. My hon. Friend said this:
I believe that every time we hang a criminal guilty of a foul murder, we are striking at the real defences of social order in any community—a high regard for human life and personality that is equally as grave in its effects upon the community as the crime it seeks to punish."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 1014.]
My hon. Friend the Member for Norwich is offering this kind of sop to the conscience of this House, that they should be content with half the number of hangings in this country because the evil would be halved by this Clause. I cannot accept the view that what is important in this issue is the number of probably worthless lives we are seeking to save. What is important is the moral effect not only upon this House but upon everyone in this country.
My hon. Friend the Member for Nelson and Colne had great influence on the previous occasion when we debated this subject, but I think that all of us on that occasion, in spite of the moral objections we had, thought that if it could be proved that hanging was, in fact, a deterrent to murder we should perhaps be prepared for a time to put our consciences in suspense to retain it, in order to pro-

tect innocent people rather than guilty people. My hon. Friend on that occasion argued with typical cogency about the position in other countries. Referring to those other countries he said:
… a barbaric penalty with which they have been able to dispense without harm to their community or their society, can be dispensed with in our case with no greater harm than in theirs."—[OFFICIAL REPORT, 14th April, 1948; Vol. 449, c. 982.]
That seems to be a reasonable point of view, and I am sorry that my hon. Friend, who has now left the House, appears to have departed from the stand he took on that occasion.
I remember the morning that the Debate took place, "The Times" had a leading article, which I think was one of the best which that newspaper ever published. It said that people had discussed year after year whether capital punishment was a deterrent and it argued that both sides could marshal a formidable array of statistics in support of their point of view. "The Times" went on to say that the only way the matter could be put to the test was to suspend capital punishment in this country and to see what the result of that suspension would be. These were the words with which the leading article concluded:
If the proposed experiment is authorised, we shall in five years have some means of comparison with the state of affairs that would be left if the threat—
that is the threat of the death penalty—
were withdrawn. The experience of foreign countries gives assurance that the risk of increased killing during the experimental years is not large; and if there is a risk it is well worth taking if thereby a foundation of ascertained fact can be laid for a lasting decision.
There was another argument which my hon. Friends advanced. My hon. and learned Friend the Member for Northampton (Mr. Paget) who I hope is in the House at this moment, based his view on human fallibility. My hon. and learned Friend cited two cases where he said that injustice was done to two men who were sentenced to death for murder. The first was the case of Bradford, the innkeeper, who was sentenced to death and hanged for robbery with murder. Under this Clause proposed by my right hon. Friend, Bradford would still have been hanged. Human fallibility is no more infallible than when my hon. and learned Friend the Member for


Northampton put forward that argument over three months ago.
The second example was the case of Hebron who was sentenced to death, but was not hanged, for killing a policeman. There again, that case would come within the scope of the new Clause. The previous Sunday my hon. and learned Friend wrote an article in "Reynold's" newspaper, in which he dealt with the case of Crippen and proved to his satisfaction that Crippen was wrongfully condemned to death. Unless I misunderstand the Clause, Crippen would come within the category of murder and would be hanged just as much under the new Clause as at the time when he was condemned to death. My hon. Friend the Member for Oldham (Mr. Hale) says that Crippen was not systematic. As I understand it Dr. Crippen was in the habit of administering this drug at frequent intervals to his wife so that he would be free from interference while he devoted his attentions to Miss Le Neve.
Since the Debate three months ago the only new facts that have come to light were those in the White Paper issued by the Home Secretary, which, if it proved anything, supported the point of view of those who were prepared to give this experiment a chance. We have been told by the Attorney-General of the bitter public opposition to the suggestion to suspend the death penalty at the present time. It would be idle to deny that the public is not enthusiastic about the step we took on a previous occasion. The hon. Member for Hertford (Mr. Walker-Smith) dealt very effectively with that point. Although the public are not enthusiastic, I do not think there is the same bitter opposition that one gets the impression there is from some of the newspapers, who have been working up an opposition to the suspension of the death penalty.
I will tell the House what I have done in my constituency. It is next door to the urban district of Farnworth where that unfortunate little boy was brutally done to death just about the time when we were proposing to suspend the death penalty. If there was anywhere in this country where one might expect to find a retributive spirit it would be there. What has happened? I have written articles in two of my three local newspapers saying that I have favoured the suspension of

capital punishment. I addressed a meeting, at which I spoke on my attitude at some length. The result was that I have had six letters from my constituency on the subject—four supporting the line I took, and two criticising it. If, out of 60,000 electors, only six think it necessary to write and, of those six, two-thirds are on my side, where is the bitterness and opposition which it is claimed exist against this proposal today?
I agree that it would be a pity if we were to go too far ahead of public opinion in this matter. That is why I have put on the Order Paper the Amendment which I shall formally move later. Its effect is this: It is to restore the period of five years' suspension, but to make that period begin only at such time as the Secretary of State may, by order, appoint. That means that when the Government in their wisdom, and with all their experience and the machinery they have at their disposal, have decided that the time is ripe they can put into operation this great moral experiment which we sanctioned three months ago.
My hon. Friend the Member for Nelson and Colne may think that that is "passing the buck." I do not think it is. We are accepting the moral responsibility of saying, "So far as we are concerned capital punishment must go; it is an evil thing, which serves no useful purpose" What is this unfair responsibility we are said to be putting on the Home Secretary? We are saying to Members of the Government, "You are the people who want to retain capital punishment and, that being so, you must accept responsibility. If you believe that this is not the proper time to abolish capital punishment do not put it into operation until you believe that the time is ripe." Where is the unfair responsibility? The Secretary of State will merely have to retain capital punishment for a little longer.
Three months ago, my right hon. Friend was asking the House to endorse the indefinite continuation of capital punishment. All we are asking him to do now is to continue it for an indefinite period which can be brought to an end when he so wishes. That is not placing a heavy responsibility upon him. The compromise of my suggestion is one of time, and not of principle. As my hon. and learned Friend the Member for Northampton said on an earlier occasion,


"this is a principle that admits of no compromise."
Tonight. I have advanced what I believe to be the moral, intellectual and practical objections to the course which the Government, by means of their three-line Whip, are asking us to adopt. I appeal finally, to Members on rather different grounds—on the grounds of the dignity of this House and the prestige that this House has throughout the country and the world, and especially the English-speaking nations. What are the Government asking us to do tonight? They are asking those who voted for suspension on a previous occasion to say one of two things; either that we took a wrong decision three months ago, that we were foolishly irresponsible to take that decision, that we took it in ignorance of all the facts, or, to say, "Yes, we took the right decision; it was a sound and moral decision but, unfortunately, we have not got the guts to put that decision into operation." I do not think that that is the way to enhance the prestige and honour of the House of Commons. If I were to adopt either of these lines I do not believe that my constituents would respect me for having surrendered to pressures from above instead of sticking to what my conscience and principles tell me is right.

8.15 p.m.

Mr. Quintin Hogg: The hon. Member for Heywood and Radcliffe (Mr. Anthony Greenwood) has just made a great impression on the House. Certainly he made a great impression upon me, if he will allow me to say so, and I must say, quite frankly, that if I had been among those who, on a previous occasion, voted for the suspension of the death penalty, I should have found his arguments absolutely irresistible. Indeed, I could see no answer to them. However, I hope the hon. Gentleman will not think that I am in any way seeking to be guilty of a political trick if I say that my case against this Clause is exactly the same as his, although my view as to the death penalty is diametrically opposite to his view. My case against this Clause is that it is not a respectable compromise. No man who honourably holds the view of those who voted for suspension on 14th April, and no man who honourably opposed that view, ought to support this

Clause. There are things which are suitable for compromise; there are limits to the scope and potentialities of compromise, but this Clause is outside those limits, for reasons which I shall endeavour to show and which largely, if not entirely, conform to the arguments so well put forward from the opposite point of view by the hon. Member for Heywood and Radcliffe.
I do not know whether many hon. Members will agree with me when I say that I, at any rate, found the earlier part of this Debate somewhat distasteful. We are, after all, talking about the lives of men and women who, whatever our decision, will be murdered in the future, and the lives of those who have been wicked enough to take those innocent lives. In all humility, I must say that I do not think that this is a subject which lends itself very favourably to the acrimony of political debate, whether or not party politics are introduced into the subject. It would be naïve of me to regret that this has become a party issue, because I think it is inevitable. To anyone who has really studied the working of our party system it was inevitable from a relatively early stage that this would ultimately become a party issue. It is enough to say that on this occasion, for reasons which I think will be obvious on reflection, the Government have gone to their party at a party meeting and have secured apparently adherence to a compromise of some kind. They have put a three-line Whip on, and the Opposition, having decided that the compromise is not one which they can support, have put on a three-line Whip against it.
But what we owe to one another is this: not to endeavour to make a kind of debating speech, such as that which was made by the hon. Member for Nelson and Colne (Mr. S. Silverman) earlier today, in sharp contrast to the speech which he made some time ago, but to attempt to put forward arguments for and against this Clause in an objective manner, without consciously seeking, at any rate, to allow natural party feeling to influence those arguments. We should endeavour to put them forward in a manner in which we believe they ought to appeal to those from whom we differ on so many other matters. That is what I shall endeavour to do. The Attorney-General based his case for this Clause upon what he


described as a broad, human approach. He condemned, in advance, what he described as logic-chopping as a means of criticism of the proposed Clause. It is precisely because I believe that only logic-chopping can support this Clause that I am fundamentally opposed to it. Any broad, human approach which is taken must, I believe, lead to a condemnation of this Clause as something which is not what anyone would desire to see put upon the statute book.
The charge I bring against this Clause, in plain and simple terms, is lack of sincerity, lack of intellectual integrity. That is what I say is wrong with this Clause, and if I bring criticisms to show that it introduces anomalies, it is only for the same reason that the hon. Member for Heywood and Radcliffe brought his criticisms. It is because it is not intellectually respectable that I am deeply convinced the House should not accept it. The only defence I have heard of it is that it is a compromise. The Attorney-General sought to impose upon us who oppose it, the dilemma of saying either that we will accept the change in the present arrangement of the law regarding the death penalty, or that we will accept a compromise on these lines. I deny the dilemma. You cannot compromise between the principles of those who think that the death penalty is inherently wrong, and those who think it is a legitimate method of punishment.
We on this side are not committed and do not seek to commit ourselves to the view that the present law of capital punishment is perfect. It would be rather more difficult than some people think to improve it; because after many years of continuous and careful reform of the law it would be a surprising thing if some of the more obvious improvements had not already been carried out. We do not commit ourselves to the view that the present system of applying the death penalty, or the circumstances in which it has to be applied, is incapable of improvement. If the Attorney-General were to come to this House and say, "Let us now, upon some rational principle, accepting the death penalty as part of our criminal law, try to introduce reforms to our law," I should certainly be ready to discuss any constructive proposals he sought to put forward. But that is not what the right hon. Gentleman is doing. What he is trying

to sell to the House is not a rational improvement of the law of capital punishment, but a shabby compromise between those who think it is wrong to inflict it at all, and those who think that in principle it is a good thing to do. I, for one, am not prepared to discuss proposals which are based on that principle, because that is the sort of compromise that can lead to nothing but anomalies, and nothing but dishonour to anyone who touches it. That is why I feel bound to point out the anomalies and inconsistencies into which this Clause inevitably puts those who seek to support it.
I can understand the case which we had to face on 14th April. We were then told in a number of eloquent and well-reasoned speeches, first, that the death penalty was wrong in itself, and, secondly, that it acted as no deterrent to the crime of murder and no deterrent to any crime for which it was proposed. We differed about that, but it was a consistent and logical case founded upon a respectable principle. But the Clause proposed by the Attorney-General concedes both these arguments of principle against himself. It concedes the principle that the death penalty is right, and it concedes the principle, or clearly implies the principle, that in certain cases the death penalty is an effective deterrent. That is what the Clause does, and it cannot be morally justified at all unless it concedes those principles.
If what the Attorney-General said conceded these principles and asked us to accept any rational basis whatever for applying the death penalty, we should be open-minded about it, but what he did, on his own showing, was to hotch-potch together, not the things as to which he believes the need for a deterrent is greatest, but the crimes for which he thinks the public has got the greatest degree of repulsion. In other words, the Clause which he is introducing tonight, for the first time for many years, is expressly based upon the theory of retribution, and every Member who votes for the Government tonight, whatever his or her convictions may be, will be recording his or her vote in favour of a Clause which is expressly based upon the principle of retribution, and upon no other principle at all, and no amount of logic-chopping by the Attorney-General can conceal that fundamental want of respectability about the Clause.
It is for that reason, and not for any mere incompetence in draftsmanship, that the Clause produces a number of anomalies. I do not want to detain the House at any great length by running over those anomalies which have already been pointed out by Members on all sides—the completely arbitrary character of the offences which it is now proposed will give rise to the death penalty. The most deliberately planned, systematic, brutally sadistic murder is free from the death penalty, unless it is accomplished by poison, and then only if the poison is administered systematically, although what is a system for this purpose is, conveniently left undefined.
I do not indulge very much in advising people myself as to the circumstances in which murder may be committed, but I can imagine a lawyer—not an English lawyer in this country—saying "Remember, madam, one glass of poison only, otherwise we shall have to forswear the use of poison altogether." That would be good legal advice under this Clause. The only ascertainable reason I can think of why it should be morally respectable to put to death a systematic poisoner would be the theory that the death penalty imposed upon such a criminal would have a deterrent effect. But if it is morally respectable for that reason, why not extend the deterrent to other cases of premeditated and deliberate murder? There can be no logical answer to that question.
Consider, too, the fantastic anomaly inherent in the proposal to protect only special classes of victims. Constables, prison warders and persons assisting constables are apparently to be expressly protected, but why not a person assisting other people? If, for instance, a ward sister in the hospital where that little girl was so brutally raped and murdered had sought to interfere with the criminal, not for the purpose of arresting the criminal but simply for the purpose of rescuing the child, and had got murdered in consequence, the Attorney-General would not have been able to prosecute on a capital charge if this Clause had been the law. Yet the only ascertainable reason why it is morally respectable to put to death the murderer of a policeman or the murderer who seeks to avoid arrest is, so far as I can see, that it is a deterrent. If it is

a deterrent to the would-be murderer of a policeman, why should a ward sister be denied the like deterrent when she seeks to rescue a child from rape and murder? If it is not a deterrent, why have the death penalty at all?
Consider the extraordinary situation created by the definition of "express malice" contained in subsection (4) of the Clause. Hitherto, when summing up in murder cases, the learned judges have found the situation already complicated and difficult by reason of two factors. The first is the necessity of explaining to the jury the doctrine of manslaughter and provocation. The second is the doctrine of constructive malice. Consider the complications now. The learned Attorney-General, with the same assurance as that with which he condemned the judgment of a judge seated in an obscure court of Chancery Division on one occasion, now airily assures us that the common law judges and their juries are so astute in understanding the niceties of the law that they will experience no difficulty. The Attorney-General has had a very much more extensive practice than I have had, but I venture to suggest to him some reasons why I differ from him.
Consider what a judge would have to tell the jury if he were summing up in a case in which a man was accused of what, under the proposed new Clause, will be a capital charge. Consider, first, the alternative verdicts which the jury can give. The first verdict would be that of guilty of the offence as charged, that is to say, guilty of murder, capital murder or murder in the first degree. The second verdict is, of course, "Not guilty" of anything. The third verdict is guilty of murder, but not in the degree charged. The jury could bring in that verdict, under the proposed Clause. Then there is the verdict "Not guilty of murder but guilty of manslaughter" owing to provocation. In addition to that, the jury will have to consider verdicts of guilty of any one of those three offences but insane.
The learned judge will, first of all, have to go through this proposed Clause, to explain the meaning of "express malice" and each of the five categories, or whichever of them are relevant to the particular charge to render it a first degree offence. Secondly, he will have to draw breath and then explain to the jury the entire doctrine of constructive malice, for the purpose of


enabling them to arrive at the alternative verdict of murder, but not murder in the first degree. He will have to explain the whole range of the complication of the existing law of murder. Thirdly, he will have to deal with the possibility that provocation may be a defence and he will then have to explain to the bewildered jury the difference between murder as it is now and manslaughter, carefully warning the jury that mere words do not amount in law to provocation. Fourthly, he will have to cover the ground of the burden of proof and the question of criminal sanity and criminal insanity, within the Macnaghten Rules if, as I apprehend will not often be the case, the murderer puts that forward as a contention.
Can anyone suppose that anybody short of a metaphysician could make sense of a summing up in which all those issues had to be set up seriatim? In a very large number of cases that is what the learned judge will have to do, and if he fails in any one particular satisfactorily to sum up the law, be the case never so plain, the Court of Criminal Appeal will upset the verdict and a guilty man will go free. That is the position to which we are reduced in the present situation.

Mr. Hector Hughes: The hon. Gentleman is building up a case against this Clause by attempting to argue that the learned judge will have to sum up this and sum up that, but are not most of the matters to which he has referred, already the subject of the judge's summing up?

Mr. Hogg: No; some are and some are not. I have already explained that the summing up in a murder case is by no means child's play, as the hon. and learned Member will no doubt discover when he eventually achieves judicial preferment. My argument was that this Clause piles Pelion upon Ossa. In addition to the already complicated structure of the law, the learned judge will have to go through what is by no means an easy Clause and explain that to the jury, not instead of the existing law but in addition to the existing law. It was to this that I was drawing the attention of the House.

Mr. Hector Hughes: rose—

Mr. Hogg: I do not think I ought to give way. I mean no discourtesy to the hon. and learned Gentleman, but I feel

that there are many hon. and learned Members who wish to speak—[HON. MEMBERS: "Hear, hear."]—and every time one gives way, one probably helps to deprive some great orator of a decisive contribution to the Debate. It is not from any desire to be discourteous to the hon. and learned Gentleman that I do not give way.
The next point to which I wish to draw the attention of the House is the fantastic position with regard to the doctrine of constructive malice. The Attorney-General spoke as if the doctrine of constructive malice were either being abolished or somehow waved on one side; but it is not being abolished. It remains present in every case to which this Clause applies, first of all as the basis of a possible alternative verdict.
Not only that; it remains present in every case in one of the categories to which this Clause applies, because this Clause is expressly designed to apply to the case of second murder. We get the extraordinary position that a deliberate murderer who has deliberately murdered somebody in the most brutal way, otherwise than by systematic poisoning, is not subject to the death penalty, but by virtue of the doctrine of constructive malice, a person who has been guilty of murder once who subsequently kills somebody in circumstances amounting to murder and with intent to maim, will be subject to the death penalty. All that has to be explained to the public sense of morality, and some of it, although not all of it, will have to be explained to juries.
Consider, too, the possibility of a perverse verdict under the new law. When we were arguing this case on the basis of suspension, we were treated by the other side to a number of very cogent arguments to the effect that if we suspended the death penalty, there would be fewer perverse verdicts of acquittal. Consider how the matter will stand now. One of the great arguments—to my mind, the conclusive argument—against the proposal which some of my hon. Friends favour of two degrees of murder in the strict sense is that it puts upon an untrained tribunal an intolerable burden that they and they only—not the judge, not the Home Secretary, but they and they only—are the people who decide whether what the man has done comes within capital murder or murder in the second degree.
If we are to appeal to the experience of other countries, surely it is this: that when juries are placed in that intolerable position, they nearly always try to find a way out by a compromise verdict. And remember, too, that a compromise verdict may be just as harsh upon an accused person as it may be unfair to the public, who do not get a conviction for the crime of which a man is really guilty, because a compromise verdict very often means that an innocent man is convicted of a less heinous offence than the maximum with which he is charged. It just as often means that as it does that a guilty man is acquitted of the highest offence.
How does that apply in the present Clause? Imagine the burglar who shoots the policeman—which, after all, is one of the great cases which this Clause is introduced with the idea of covering. The Attorney-General admitted that it was intended to cover, amongst other cases, the case of the burglar who shoots the policeman with a design of closing his mouth as the only evidence against him. What is the position in practice under this Clause? The position is this: one has to prove not merely that the murder was the murder of a policeman in the course of his duty or, alternatively, that it was done in the course of committing the crime, but one has to prove that it was done with express malice, in the sense of having the intent either to kill or to maim, and to do so in circumstances which may reasonably be expected to endanger life. That is what the prosecution has to prove. But now the murderer will say, "Oh dear, no, I never used a revolver before. I carried it with me to frighten the policeman, and I shot it into the air, but my hand quivered and it was just bad luck that the poor fellow was hit in the heart."
Take another case that the Attorney-General is seeking to cover by his brave new Clause, the case of the sexual murder—the man who, in the course of a rape, kills the woman, very often by the most disgusting act upon her body and not with the idea of killing her at all; by biting portions of the body off, kills the woman not in order to evade arrest, not in order to close her mouth—to quote the instance given by one of my hon. Friends—but simply in order to gratify his inordinate lust. That is not by any means an impossible case. Where does he stand?

The man who throttles a woman or kills her in some other way during the course of rape obviously has no express malice—he does not hang.

Mr. Paget: When the hon. Gentleman says that, is he on deterrency or revenge?

Mr. Hogg: I am saying frankly that I think that man ought to hang. I have considered all the possibilities—

The Attorney-General: An eye for an eye.

Mr. Hogg: No. I resent the Attorney-General's misquotation of the Scripture. I have considered all the possibilities and I do not consider in that particular case, although there are very few other cases where I should say it, that any good purpose is done to the criminals of this country or to the society of this country by keeping that man in prison. I think that he is a man who had better be hanged, unless he comes within the Macnaghten Rules, which is a very different story.
Again, in all these cases, we are told that the only respectable reason which will justify putting these murderers to death is as a deterrent but, if it is, and if this be the reason, why not extend the deterrent to other innocent victims? If, however, it is not a deterrent, then why on earth have this Clause at all in place of the Clause which was passed in April? The Attorney-General, I thought, showed his own position very plainly at the close of his speech. He made it abundantly plain that he is really an abolitionist—

The Attorney-General: indicated assent.

Mr. Hogg: He admits it. If he were a respectable abolitionist, I would not mind it; I would know where I stood; but what cannot be justified in any circumstances whatever, in my submission, is an attempt to compromise on no principle whatever between those who think that capital punishment ought to be abolished altogether and those who want to apply it rationally as a deterrent, because the only result of that is to get capital punishment imposed upon people in such circumstances that it cannot conceivably be a rational deterrent. It thereupon becomes retribution and nothing else.
There are only two other observations I want to add. Some of us have been


following this Criminal Justice Bill since 1939. We thought it was overdue then; it is still more overdue now. We want this Bill to become law, and as soon as possible. I cannot help thinking that the only effect of introducing this particular issue into this Bill, from which it has been absent and from which it was kept absent, very largely because it was so controversial, has been to postpone the first great codification and reform of our criminal law that I, at any rate, can remember in my political lifetime. I beg the Government to reconsider the matter from that point of view.
If they must go on with proposals to abolish the death penalty, let them intro duce a one-Clause Bill. Let them bring it into this House and, if it is passed, if it becomes law by a constitutional process, let them have it; but—and I beg hon. Members opposite to listen to my plea, because I know that some of them have this Bill at heart every bit as much as I have—do not let them continue to have this Bill held up because of our disagreements about capital punishment. It is far too important. It is idle for one side to say that the other side ought to give in—I am not asking for that; but I beg the Government to dissociate the capital punishment issue from the Criminal Justice Bill and bring them in as two different Measures. If they do so, whether they get their new Bill or whether they do not, they will at any rate have avoided an undue delay in the necessary social reforms which this country requires.

8.47 p.m.

Mr. Benson: Those hon. Members who voted last time for the suspension of the death penalty and are now going to support this new Clause have come in for a good deal of criticism from both sides. I can understand hon. Gentlemen opposite, who are only pleased to cause as much trouble as they can. The hon. Member for Oxford (Mr. Hogg) objected to the Attorney-General, who believes in abolition, supporting the Clause. He said that he could have understood it if the Attorney-General were a respectable abolitionist. A respectable abolitionist is apparently one who is not prepared in any circumstances to compromise. That apparently is the interpretation put upon it by the hon. Member for Oxford. I do not know whether I am a respectable abolitionist or not. I am an

abolitionist, and have been for many years, but I am going to vote for the Government's Clause, and I am not ashamed.
I do not mind the hon. Member for Oxford attacking us, but what I do object to is the attitude of the hon. Member for Heywood and Radcliffe (Mr. Anthony Greenwood), who I am sorry to see has now gone. His position is that he is an abolitionist, but he is not prepared to spot himself by supporting the Government Clause. His conscience will not allow it. I respect his conscience but I cannot understand it. I do not understand people's consciences being so strong without those consciences having any effect upon their conduct. When has the hon. Member for Heywood and Radcliffe lifted a finger for penal reform?

Dr. Morgan: He is young yet.

Mr. J. Hudson: He has spoken in his constituency.

Mr. Benson: Spoken in his constituency—

Mr. Hudson: Has the hon. Member for Chesterfield (Mr. Benson) done that?

Mr. Benson: —while I have spent my life in penal reform and working for the abolition of the death penalty.

Dr. Morgan: Not at his age.

Mr. Benson: I have put a great deal of work in and I object to these people who have suddenly awakened to the fact that there is a death penalty, turning round—

Mr. Yates: Me hon. Member ought to welcome that.

Mr. Benson: —turning round and sneering at those of us who have spent long years in penal reform. I am prepared to compromise, for I have spent long years working for penal reform.

Mr. Warbey: Will the hon. Member permit me—

Mr. Benson: No. I am not going to give way.

Mr. Hector Hughes: The hon. Member is attacking an absent Member and will not give way.

Mr. Benson: I am attacking because I was attacked. One thing that work for penal reform has taught me is how slow is the progress and how heavy is the work of getting any small reform through. We would still be back in the du Cane system if everyone had said, "No reform at all, unless it is perfection." I am prepared to take this Clause because it gives me something—

Mr. Boyd-Carpenter: However silly.

Mr. Benson: —however small. It may be silly from the point of view of the hon. Member for Kingston-upon-Thames (Mr. Boyd-Carpenter), but from the point of view of us who object to capital punishment, it is not silly. It will reduce death sentences to something like one-half under present circumstances and to about one-third under normal conditions, and if I can get that in one blow I shall be very satisfied indeed. The hon. Member for Kingston-upon-Thames said there was no possibility of compromise between the two sides of the House. He said that views were absolutely apart. Our view is that capital punishment is wrong. Apparently the view of the hon. Member is that capital punishment is right. What does he mean by right? Under all circumstances?
It is quite meaningless to say that there is no possibility of compromise. The very fact that almost half the hon. Members who have spoken in favour of retention of capital punishment have suggested that we should allow it to fall into desuetude by the use of the Prerogative shows they know that it is not an absolutely right thing. They themselves know that it must go sooner or later. We would prefer it to go rather more rapidly under this Clause. They themselves admit, by their suggestion that the Prerogative should be used to bring the matter into desuetude, that it is an evil thing. I know they are afraid of the results. The fears they express are not new fears; they are very old fears. They are fears which have been expressed every time any great step in penal reform has been advocated in this House. I ask them to remember that and I ask them further to remember that in the event, those fears have never yet been justified.

8.55 p.m.

Mr. Basil Nield: I have promised to be brief in view of the

lateness of the hour but I am anxious to say a word or two on this important matter. The new Clause which the Government seek to introduce into this Measure has been described as a compromise proposal. Indeed the hon. Member for Chesterfield (Mr. Benson) suggested that there might be a compromise between the two sides of the House—a most extraordinary suggestion. What I am putting to hon. Members at the outset of my speech is whether it is really worthy to have a compromise as an objective in this immensely important question. Surely the objective of this House of Commons in a matter which, for once in a way, is literally a matter of life and death should be to achieve a solution of the problem which accords with justice and right.
I have, after careful thought, to say quite unequivocally that I am against the abolition or suspension of the death penalty for four principal reasons. The first is that I believe the sternest of all deterrents to be the fear of death. I have sufficiently frequently talked with men in the condemned cell to take the view that when the last moment comes, they prefer life in any conditions to death. Therefore, I say that the sternest deterrent is death. The second reason for my holding this view is that this time, when we all know that the increase in crimes of violence is unprecedented, is a most inopportune moment to experiment in abolition or suspension. My third reason is that whereas some argue that one should abolish the death penalty in case a mistake should be made and an irrevocable penalty exacted, it is in truth a safeguard against the danger of wrongful conviction because a jury will never convict, knowing of this dire penalty, unless they are wholly and absolutely convinced of the guilt of the accused. Finally, while hon. Members must of course make up their own minds upon this question, is it not sensible and right to pay due heed to the Minister of the Crown charged with the maintenance of law and order? The right hon. Gentleman, who is known for his humanity, takes the view, as I understand it, that he needs this weapon to fight the crime wave which is with us.
Those are my reasons for my first decision. I am also of the opinion that the severity of the law can be mitigated in


order to achieve what our ends should be—justice and right. I believe, not without wide experience in the criminal courts—and it is only right that I should say it—that the law operates harshly in three specific respects. In the first place, while, as we all know, murder is the killing of another with malice aforethought it has been judicially decided over the years that malice aforethought does not necessarily mean premeditation but merely the intention which precedes the act. In the second place, as the House knows, the crime of murder may be reduced to the crime of manslaughter if there is sufficient provocation, but the law says that that provocation must be such as to deprive a reasonable man of his self-control. The test, I suggest, is that it should not be "a reasonable man," but the accused man who is being tried, who may be of another race, who may have perhaps some mental instability short of insanity or some other idiosyncrasy. In the third place, as we all know, if the defence of insanity is advanced, the onus of establishing it is upon the defence.
In those circumstances I have put on the Order Paper an Amendment, to which the Attorney-General referred in his opening observations. I do not know whether it is the first time he has seen it, but it has been on the Order Paper from the inception of our discussions upon this matter. I take this view, and I am speaking solely for myself, I hope according to conscience and experience, when I say that justice can best be achieved by the classification of the crime of murder into two degrees, based largely upon the system which obtains under the criminal code in the United States of America, the vital and essential test being, was there premeditation: if so, the death penalty; if no premeditation, then imprisonment. There we have a clear-cut, reasonable and, I suggest, logical and rational solution to this problem.
During the Second Reading Debate I ventured to seek to illustrate this argument by pointing to two sets of circumstances for which the same dire penalty alone is now recognised. For the long, wicked, deliberate poisoning by a husband of his wife for gain, the penalty is death. On the other hand for the sudden attack and killing, in a moment of passion, of an enemy who has perhaps done the assailant grievous wrong, again the penalty is death.

Surely the House would agree that those two sets of circumstances are not comparable in the culpability which must be attributed to the offender. It is in those circumstances that I advance this proposal.
The Clause which is now proposed by the right hon. Gentleman, as the Attorney-General has pointed out, has not as its basis that which I regard as essential, premeditation or no premeditation. Here we have been told that various sets of circumstances which are regarded by the public as revolting have been selected to be dealt with by the death sentence and the others by no death sentence. When we are told by responsible Ministers that they cannot base this upon logic or upon rational reasons, and when we are told that the Clause can be riddled by the lawyers, it does seem much to ask the House to accept the Clause which is being put forward. I find it impossible to agree to this Amendment and I have suggested a counter proposal, which I hope will be considered.
In two or three sentences it is this. For an overriding class of case where the killing is wilful, deliberate and premeditated, the death penalty. Poisoning also, because that involves premeditation—the purchase of the poison and the rest of it—and lying in wait, which again involves premeditation. Lastly, special cases where there is a killing in the course of the commission of another offence when the offender is armed, which seems to be necessary for the protection of the community. I still hope that consideration may be given to these proposals. I assure hon. Members with great sincerity and earnestness that along these lines, we have a better hope, not for a compromise but for a reform in our great legal system which will accord with justice and humanity.

The Attorney-General: Perhaps the hon. and learned Gentleman would help me about this. I have listened to what he has said with very great care. I referred to his new Clause in my opening remarks. I was anxious to know exactly what there was between us. Would I be right in thinking that the main difference between us in this matter is that his new Clause is, on the whole, based on the principle of retribution, whereas ours is, on the whole, based on the principle of deterrence?

Mr. Nield: No, I would not put it in that way at all. In my view, the essential reason for such a penalty is deterrent—to deter others from similar dreadful crimes. I would say that that is the essential matter. It follows from that—I agree so far with the right hon. and learned Gentleman—that the main purpose is the protection of the community.

9.7 p.m.

Sir John Anderson: I have no desire to take advantage of this opportunity to go into considerations which are relevant to the general issue of capital punishment. If I were to do so, I should find, in the last general Debate in this House, many points raised on both sides upon which I should wish to comment, but I must resist the temptation. After all, an entirely new issue has now been raised. It is proposed that the Lords Amendment should not be accepted and that we should make now an entirely different approach to the whole question.
Before coming, however, to the new Clause there is just one point which has been suggested to my mind by a study of the earlier Debates both here and in another place, because I think it is of considerable importance and has not so far been brought out sufficiently. It is something which is relevant to an observation that the Attorney-General made when he referred to the familiar argument that certainty of detection and not severity of punishment is the thing that matters. Of course, I agree that severity of punishment is no substitute for certainty of detection, but I would not go so far as to say that severity of punishment added to certainty of detection may not make a very powerful contribution to deterrence.
The point I have to make is that the fact that murder is marked out by our criminal law from all other crimes, with two exceptions which do not matter for this purpose, contributes directly and substantially to the chance of detection. It is a trite saying that there is honour among thieves. That is true in so far as members of the criminal classes, as a rule, do not give one another away. But that kind of solidarity does not apply where the use of lethal weapons is concerned. Experience has shown time and again that members of the criminal classes are perfectly ready, even anxious, to give

information to the police which will help in the detection of one of their number who has so far forgotten the rules that members of that fraternity apply to themselves as to be found in possession of a lethal weapon when he was engaged in crime.
That is, I believe, how it came about that the murderers of Gutteridge were brought to justice. Some of their associates in crime, though not in that crime, were willing to give information to the police which led to the discovery of evidence which resulted directly in the conviction of these people. That, I believe, is a fairly common experience, and that is because murder is in a special category. In my view, that is a powerful argument against assimilating the penalty for murder to that for other serious crimes.
Now I come to the new Clause on the Order Paper, and I hope my hon. and learned Friend the Member for Chester (Mr. Nield) will forgive me if I do not go into the merits or demerits of the new Clause standing in his name. I confess at once that I have no love for capital punishment, and that I would be in favour of the classification of murders if I could be satisfied that that course was practicable. I have toyed with the idea myself. I believe that capital punishment, as I made clear in my previous speech on this subject, is of value as a deterrent in, at any rate, certain classes of crime. If I were not so satisfied, I would be in favour of the abolition of capital punishment if, but only if, I was satisfied that that course was acceptable to public opinion.
Here I would like to make clear how I view public opinion in this connection. I think that public opinion has a very peculiar significance in relation to this problem of the capital sentence which we are now discussing. It is not, in my view, an opinion to be consulted as an aid to forming a sound judgment. It is not an opinion of selected persons, but the general public opinion of the people of the country, and I think it is that opinion which, right or wrong, is itself a material and it may be a determining factor in deciding whether the abolition of capital punishment is or is not justified—apart from the question of deterrence which was my first point—because the decision on this question is something which will


affect not only the peace of mind of large classes of people of this country, but also, it may be, in many cases, their own course of action. Therefore, I say that we have to pay regard to public opinion in a very special sense in this matter. There are many matters in regard to which we can say that the opinion of people outside who are competent to judge is in a certain direction and that is all that matters. That, in my judgment, is not all that matters here. It is the general opinion of the people of the country which is relevant.
I said a moment ago that I should be inclined to favour the classification of murders if I felt satisfied that it could be done effectively. I cannot bring myself to think that the new Clause on the Order Paper represents a satisfactory solution. I will give the House very briefly the reasons for that view. My first reason is the general one that it seeks to substitute a rigid and elaborate statutory code for the existing flexible, well-tried system. The complicated wording of this very elaborate provision is, in my view, bound to give rise to very grave difficulties of interpretation in the courts. The Attorney-General used, I think, the expression "rubbish" when my right hon. Friend the Member for Woodford (Mr. Churchill) was making this point.

The Attorney-General: indicated dissent.

Sir J. Anderson: Perhaps I am mistaken, but he has used the word "rubbish."

The Attorney-General: I used the expression "rubbish," but not in relation to that point.

Sir J. Anderson: At any rate, I hope the right hon. and learned Gentleman will not use the expression "rubbish" in regard to what I am about to say.

The Attorney-General: I am almost certain that I shall not.

Sir J. Anderson: I shall not attempt to go into this matter in the detail which is proper to any of my learned Friends on this side of the House. I want to make a perfectly simple approach. Let me put this to the Attorney-General. Will not the "express malice," as it is defined in the Clause, give rise to serious difficulties in a number of cases?
Let me quote one particular case. The Attorney-General may remember the case of the Coventry murder—Barnes and Richards were convicted and sentenced to death for what was known as the Coventry murder in, I think, the year 1940. They were engaged in a felonious enterprise; they had explosives in the carrier of a bicycle; something happened to disturb them; they left the bicycle leaning against the wall of a post office in Coventry and ran away; and while they were absent the explosives, for some reason, went off, blew in the wall of the post office and killed two innocent passers-by. Was there or was there not "express malice" in that case? They were engaged in a felonious enterprise in which they intended to use those explosives. I think that is a difficult case. They were hanged and if they had not been hanged public opinion would have expressed itself very forcibly.

The Attorney-General: I do not know whether the right hon. Gentleman wanted me to intervene and express my view, for what it is worth. If so, I am bound to tell the right hon. Gentleman that in my view there is not the slightest doubt that in that case since there was no intention to kill or to maim and, therefore, no "express malice."

Sir J. Anderson: I am much obliged to the Attorney-General, because that is what I thought he would say. Other people, I am sure, would seek to argue that there was some form of "express malice" in that case because of the felonious enterprise in which they were engaged, but, if not, it is surely a great weakness of the proposed Clause that persons found guilty of murder in such circumstances should escape the death penalty.
Let me pass to another point. I am making a layman's approach to this and want to be clear, if possible, on the meaning of this very elaborate Clause.

Mr. S. Silverman: Would the right hon. Gentleman say, as a very experienced layman indeed, whether he means he would recommend the House to retain the death penalty in cases where demonstrably there was no intention to kill?

Sir J. Anderson: No, but in this case the hon. Member will see there was intention to kill, though not the particular people who happened to be killed. That is what the explosives were for.
Let me pass to another point. There is, in this Clause, the word "immediately"—it reads:
in the course of, or immediately before or after …
Will not that give rise to some difficulty of interpretation? Yet another point. There are the words "in the course or for the purpose of." Words like that are very familiar to some of us; they occur in the Workmen's Compensation Acts. Will the Attorney-General say that such words as those do not present very serious difficulties in interpretation? It was many years before the interpretation to be placed on the words "arising out of and in the course of" in the Workmen's Compensation Acts had been determined by the highest tribunal of the land. Cases went to the House of Lords. We do not want to have that sort of thing arising in criminal cases where the question is whether the penalty should be capital punishment or penal servitude for life.
My next reason for criticising this Clause is based on the very many anomalies to which, in practice, it must give rise. My right hon. Friend the Member for Woodford (Mr. Churchill) referred to a number of instances where the effect of the Clause might be exceedingly anomalous. Reference was made to systematic poisoning as against poisoning by a single dose. Is it really justifiable to have, for systematic poisoning, the capital penalty, and for poisoning, however premeditated, by a single dose, penal servitude for life? The hon. Member for Nelson and Colne (Mr. S. Silverman) said he thought the systematic poisoner was a person who would not be deterred by capital punishment but, in my view, it is exactly the opposite. Because the systematic poisoner is afraid of the rope he attempts to carry out his purpose by a method by which he thinks it might be possible to escape attention.
I have seen a great many of these cases. Now it is to be said that if he comes to the conclusion that it is no longer safe to do it by instalments, in the hope that his victim's condition will not be correctly diagnosed—and one dose of weed killer has been known to be used as a means of getting rid of somebody—he is to suffer the lesser penalty. What about murder by shooting? Is it or is it not the case that murder by shooting is, under this

Clause, capital murder? I think it is. I think the reference in Section 2 of the Explosive Substances Act brings in any form of shooting. That means the capital penalty. The Attorney-General shakes his head. He must know what this Clause means. After all, this is very important, especially in relation to political assassination. Would the persons who shot Sir Henry Wilson have been subject to the death penalty under this Clause? Yes or no? The question must be capable of a simple answer.

The Attorney-General: I could have in tervened on a number of occasions already during the right hon. Gentleman's speech, and I hope he will not think me discourteous, but my view is that that case would not be covered, assuming that there was only one person in it.

Sir J. Anderson: My recollection, from 10 years at the Home Office, is that the Explosive Substances Act, under which heavy penalties can be imposed, has been used in cases where the only explosive substance was the charge in the barrel of a gun. It is inconceivable to me that the Government should have put forward a Clause of this kind without knowing the position of a person who attempts assassination by the use of a firearm. If the Attorney-General says that such a person could not be liable, if his attempt succeeds, to a capital sentence is that the position, in present day conditions, in which we should be content to leave the law on the subject of murder? I thought better of the Attorney-General than that. I thought he had quite deliberately put in a reference to explosive substances in order to make quite sure that a planned murder by the use of firearms would carry the capital sentence, but he says, "No." Perhaps he will look into it. It is not for me to say what is the law, but I wonder very much if he is really right.
Let me take the case or a multiple murder. I do not expect the Attorney-General to rise and answer every point I raise, but I think these are serious points. Take the case of the multiple murder. Someone is discovered to have committed a murder, and investigation discloses a whole graveyard of victims. Is that person to be dealt with under the provision with regard to previous murders, and if so how is the Crown going to proceed? How is it going to pick out the


first victim in respect of which proceedings are to be taken? Or does this Clause only contemplate a person who sometime in the past has been convicted of murder? These are all simple questions which ought to be capable of an immediate and simple answer.

The Attorney-General: My right hon. Friend will be able to answer these very simple questions. In that case I think there would be no difficulty, because medical examination would no doubt indicate that some body had been in the graveyard rather longer than the others.

Sir J. Anderson: I am very obliged to the Attorney-General. Then what happens when the Landru of this country is discovered, as he will be sooner or later? There will be a long investigation into all the circumstances, and someone will pick out the body which he thinks represents the earliest crime, and then there will be proceedings in respect of that offence. The victim may not be known. Surely the simplest way to proceed would be with the latest case which led to the discovery of the first murder? But that is not to happen. Is that satisfactory? Is it satisfactory that the procedure in a murder case should have to be manipulated in order to produce a particular result? That is my third objection to this Clause. It involves, as I have said, a manipulation of procedure in order to bring about a substantive result.
It does seem to me as a layman that under the provisions of Subsection (3), when a man known to the police to have committed a previous murder is brought up for trial, the proceedings are to be confined in the first instance to evidence relating to the later murder. The jury are, I suppose, to be invited to deal with the matter in ignorance of what is really involved, because only the prosecution know that they have this bombshell ready after the first proceedings have been completed. The jury do not know, and at the second stage when they are asked to consider what may be a perfectly simple presentation of facts in regard to a previous conviction they will then discover for the first time that the effect of the decision they have just arrived at is that the man they thought they were condemning to penal servitude for life was being sentenced to death. Is that satisfactory? If I were learned in the

law I could no doubt develop this point in great detail with devastating effect, but I think that the simplest presentation in an assembly of this kind is sometimes the best. My approach to the whole subject is not unsympathetic, if this can be done in a satisfactory fashion. I am arguing that it has not been done in a satisfactory fashion, and I am prepared in a moment to concede that it probably cannot be done in a satisfactory fashion.
Let me first put my fourth point. It is that if the Clause becomes law, the task of the Home Office in administering the prerogative of mercy will be exceedingly, and I believe overwhelmingly, difficult. What will arise will be this: A man is convicted of murder in the first degree, or capital murder, or major murder, or whatever you like to call it. The review takes place, in the ordinary course. Then it appears that while, on a consideration of that case itself, there would be no sufficient reason for exercising the prerogative, the advisers of the Home Office will be in a position to put before the Home Secretary a whole series of cases bearing some resemblance to the are in question but differing in detail and which, for technical reasons, came within the second category, minor murder, where only the penalty of penal servitude was imposed. Representations will be made with great force and conviction that it would be wrong and inhuman to allow the law to take its course.
In regard to the man so unfortunate as to be convicted of murder in the first degree, there would be other people whose crimes were more heinous and were premeditated crimes but got off, because, as the result of the wording of this new Clause, they could only be convicted of murder in the second degree. I think that in the course of a very short time the administration of the prerogative will be brought into a condition in which the conduct of a Home Secretary can no longer be defended on any logical principle. I would ask the Home Secretary to consider that point very carefully. I think it is a very serious consideration indeed. It may be that it was in the minds of some of the hon. Gentlemen who are responsible for this Clause that that would be the result; that, as a result of passing the Clause in this form, the prerogative of mercy would be widely extended side by side with a limitation


of the criminal law in regard to murder. That might have been their intention. If so, we had better know. The Clause will have this effect. I say without hesitation at all that that will inevitably be its effect.
My conclusion from all this is that the task which the Government have set themselves to try to classify murders by a series of rigid definitions is, if not impossible, certainly very difficult. If it had not been very difficult I cannot think that the Government would have made such a mess of it as I think they have. I have no objection whatever to departing from strict logic in matters of this kind. The Attorney-General devoted a few sentences of his speech to making the point that we ought not to try to be too logical, but an argument in justification of a departure from logic is not a justification for stupidity. The effect of this Clause, for reasons which I have tried to show very briefly, would be to produce a state of things which, from any standard of commonsense, could not possibly be defended.
If the Clause is so unsatisfactory that we cannot give it support, what alternative is there? We could give a discretion to juries and judges, as is done in some countries. The suggestion made by my hon. and learned Friend in his Clause would have very much that affect. We would fall back not on a series of rigid definitions but on a very general definition, somewhat on the lines of what is found in the United States, and then we could leave it to judge and jury to decide whether the case fell on one side of the line or on the other. That would be possible. I do not think it would be acceptable in this country. I am sure the judges would not like it. However, it would be possible. That would involve so great and radical a departure from our traditional position that I do not think I would support it.
If that were to be rejected, what is left? I say again to the House what in my opinion is the only possible and sensible course for those who believe that the capital sentence is an evil—perhaps an unavoidable evil—and who would like to see it got rid of to the fullest extent and as speedily as possible. The proper way is to proceed by exercise of the Prerogative. I believe—I am going to be rather bold here—that it would be possible to

define categories for the purpose of the exercise of the Prerogative and to let it be known publicly what these categories were. I thought the Attorney-General was a little too downright in his condemnation of the course the Home Secretary had taken. I think the Home Secretary took an unfortunate course in what he decided to do in regard to capital sentences after the first vote in this House, and he was condemned in another place.
However, I think it would be possible to proceed in the way I suggest, always provided that the Home Secretary reserved to himself a discretion to take account of exceptional circumstances on one side or the other. The difficulty about what the Home Secretary said he was going to do was that he denied him self all discretion. He said he would take a certain course whatever the facts in all the cases as they came along. I think it would be possible—and he would not lay himself open to any condemnation anywhere—for him to define categories and to say that in all cases in category A, other things being equal and in the absence of special circumstances, he would think it right to advise the exercise of the Prerogative and that in the other cases, again in the absence of special considerations, the law would be allowed to take its course.
If anyone should be disposed to question what I have said, I would like to quote one precedent which supports it. As the law stands, no person under the age of 18 can be sentenced to death. That was not always the law. A change was made in the law quite recently. For quite a long time before that change was made, the rule obtained in the Home Office that every person under the age of 18 sentenced to death was immediately reprieved. That was laid down by Mr. Asquith when he was Home Secretary. He laid it down in this form. He said:
Over the age of 18, youth alone will not be a justification for the exercise of the Prerogative.
It was put in that form. The obvious implication was that under the age of 18 youth would be a justification for the exercise of the Prerogative, and it was exercised in every such case without exception without a change in the law. That fact, which I quote on the authority of no less a person than Mr. Asquith, who was very strict in matters of constitutional


propriety, I think justifies me in what I have just said to the Home Secretary. My strong advice—

Mr. Thurtle: Is it not a fact that about 1923 a boy named Jacoby, who was under 18 was executed?

Sir J. Anderson: The hon. Gentleman cannot catch me like that. Jacoby was just under the age of 19, and he committed a most deliberate murder in the course of a robbery, hitting an old woman over the head with a hammer. He was just under the age of 19.
That is the advice which I would give to the House and to the Home Secretary. I do not believe that any good at all will be done, on the contrary, I believe that infinite harm will be done if this Clause goes on the statute book and an attempt is made to administer it. I hope very much indeed that the Home Secretary and his advisers will give further consideration to the suggestion I have thrown out, which I believe represents the practical method of doing what I know he wants to do, and what many friends of mine have wanted to do, and that is to reduce the area in which capital punishment is enforced to the smallest possible dimensions with the hope that that will be a progressive movement in a direction which he desires.

9.40 p.m.

The Secretary of State for the Home Department (Mr. Ede): The House has had a full discussion on this matter and speeches have been made from more than two points of view with regard to the subject. I think we can say that, although there has been rather more heat engendered today than there was on 14th April, the Debate still has been one that has been worthy of the seriousness of the subject which we are discussing. I must thank the right hon. Gentleman the Member for Woodford (Mr. Churchill) for the very generous personal reference he made to me in his remarks and, if I may be allowed to do so, other hon. Members of the House who, privately, have expressed sentiments on the same lines.
I had to point out to the right hon. Gentleman that in the course of his speech he had rather neglected Subsection (8) of our Clause, which leaves this matter on the same experimental basis

as the Clause which my hon. Friend the Member for Nelson and Colne (Mr. S. Silverman) moved on the previous occasion. From that the right hon. Gentleman went on to make some remarks about Queen Elizabeth, which certainly added to the grace of the speech, only I gathered he thought that Queen Elizabeth had a rather poor opinion of blank verse. The astonishing thing is that it is the blank verse of the reign of Queen Elizabeth which is the greatest literary monument of the period, and, therefore, although this Clause does not make any more appeal to the right hon. Gentleman than Shakespeare apparently made to Queen Elizabeth, it may be that future ages will judge it rather more leniently than the right hon. Gentleman did this afternoon.
May I say this also: The right hon. Gentleman wrote to me a short time ago and asked for a copy of the letter which he read this afternoon. I at once acceded to his request that he should have a copy of the letter.

Mr. Churchill: It is entirely in accordance with custom that Ministers should have access to the documents of the period for which they were responsible.

Mr. Ede: And I at once sent it to the right hon. Gentleman. I want to say this, and I think it is necessary that it should be said, that I heard with a twinge of regret the right hon. Gentleman allude to what he stated was the fact—and I have no doubt it was—that in that case he apparently acted against the advice of his official advisers. It would be rather regrettable if it should be thought that there were cases in which it could be identified that the decision was that of the Minister taken against advice—and rightly taken against advice because it is his final responsibility—that it should be known that in particular cases it was the Minister's act, and other cases where it was the act of the Minister in accordance with the advice of his officials.

Mr. Churchill: Nearly 40 years—there is a considerable time lag.

Mr. Ede: Yes, but there may still be alive relatives of a person whose life was involved. I do not want to say more than that, but I should regret it being thought that it was possible to


attempt in this very important matter to distinguish between the personal act of the Minister, not in accordance with the advice he has received, and his act when he has acted in accordance with that advice.
The right hon. Gentleman the Member for the Scottish Universities (Sir J. Anderson) and the right hon. Gentleman the Member for Woodford both suggested that the proper way to proceed in this matter is by some extension by the Home Secretary of the day—and presumably by successive Home Secretaries—of the use of the Royal Prerogative, which would virtually mean that the Home Secretary, and not the House, would be legislating in this matter. I am bound to say that that is not a course that appeals to me. I should feel that, if one were to say that some category of murder would, except in special circumstances, as the right hon. Gentleman said, be regarded as almost inevitably to carry the exercise of the Royal Prerogative, that would involve the Home Secretary in very considerable difficulties; because when he thought there were special circumstances it might well be that other people thought the special circumstances were absent, or that in cases where he thought special circumstances did not exist other people would think they did.
One of the great advantages of the exercise of the Royal Prerogative by successive Home Secretaries including, the right hon. Member for Woodford, is the fact that this House over the years has steadily declined to question the Home Secretary about the way in which this great power of mercy is exercised. I imagine that every Home Secretary, on taking office, receives the book which was given to me, recording instances in the past where hon. Members of this House have attempted to question Home Secretaries and the way in which the issue has generally been avoided of forcing anything which would be uncomfortable for the Home Secretary. I am quite certain that if I or my successors were to adopt the lines suggested by the two right hon. Gentlemen, each of whom has been Home Secretary, they would very soon be regarded very jealously by the House as having taken for themselves powers that ought only to be within the jurisdiction of Parliament itself. Therefore, I do not

think that a widening of the exercise of the recommendation of the Prerogative is one which will help us in this matter.

Sir J. Anderson: I am sure that the right hon. Gentleman realises that there has been a progressive extension over a long period of years. I am sure he recognises that, for years before the Infanticide Act was passed, the Home Secretary was governed by the general principle that persons who would now be convicted under the Infanticide Act should not be hanged. That is a well-known fact.

Mr. Ede: Yes, Sir. It was very severely criticised from time to time and I think that the criticism was sound. I agree that the Home Secretary has the duty of examining—

Sir J. Anderson: I apologise to the Home Secretary, but, surely, what was criticised was the fact that under the law persons were subjected to the ordeal of being sentenced to death when everyone knew that, by the exercise of the Prerogative, reprieve would be automatic.

Mr. Ede: The right hon. Gentleman is asking me to re-establish that over what I understood was a much wider area. I think it is a deplorable thing that the awful solemnity of the death sentence should ever be uttered in a case where everybody in court knows that it is not going to be enforced. To suggest that that area should be extended in the way in which it has been extended seems to me to be one of the answers to the suggestion which has been made.
On 14th April the House had before them only two absolute alternatives in this matter. They could either vote for retention of the law as it stood, or they could vote for the five years' suspension in all cases of murder. By a majority, that was not large, that was contributed to by every party in the House—I am quite sure neither of the right hon. Gentlemen opposite would deny that—the House decided in favour of suspension over the whole range. The issue had been left to a free vote of the House, and I did not quite understand what the right hon. Gentleman meant this afternoon when he said he thought I ought to have resigned—[HON. MEMBERS: "Hear, hear."]—at the stage when the matter


was left to a free vote of the House, because I supported, not merely as a member of the Cabinet, but I supported personally—I make that disclosure—the view that this matter should be left to the free vote of the House.
I intimated to the House at the time that this was a matter on which the conscience of Members should not be coerced. [An HON. MEMBER: "It will be to night."] The right hon. Gentleman dealt with the matter chronologically; surely I might be allowed to deal with the matter chronologically also. We are faced with the fact that the decision reached by this House by a small majority has not proved acceptable in another place. [HON. MEMBERS: "Or in the country."] That is what I suggested on the last occasion, that the decision of the House, if it turned out to be what it was, would not be in accordance with feeling in the country, and I withdraw nothing I said on that occasion. We are faced with the fact that there was a majority in the House in favour of a certain course of action. I do not believe that the country as a whole regards the death penalty as something that should not be touched. I think that from time to time opinion in the country does tend to become more merciful in this matter.
What I did say in the course of my speech on 14th April was that there were certain categories of crime now being committed which led to murder on which I thought public opinion required that the extreme penalty should be exacted. I think that the country does believe that in the kind of cases we have scheduled in this Amendment the death penalty would act as a deterrent. What the right hon. Member for the Scottish Universities said indicates that. I think it is well known that where criminals engaged on a felonious enterprise find that one of their number is in fact armed, they are apt to push him out of the particular enterprise for that night and to take good care that on a future occasion he does not come armed.
I believe that it is necessary, with the present recklessness among a certain new type of criminal, that the deterrent of the death penalty should be retained. That we retain in our proposed new Clause. Siilarly with regard to the other categories which we have included I believe that public opinion would regard those as

suitable cases in which this deterrent should still be quite clearly available. I would go further and say that by selecting these offences we mark them out more clearly as those in which this deterrent is used, and where we think its existence will be effective.
My hon. Friend the Member for Heywood and Radcliffe (Mr. Anthony Greenwood) made a speech with regard to the Amendment which he has placed upon the Order Paper. I want every hon. Friend of mine to be quite clear on what the effect of carrying that Amendment would be. The effect would be, and clearly must be, after what I have said this evening, that nothing would be done at all. The effect of passing the new Clause proposed by the Government would be that while the death penalty is retained, with the full exercise of the Prerogative of mercy by the Home Secretary for certain classes of offences, it is not retained for others. My hon. Friends may be interested to know exactly what the effect of this new Clause would have been had it been in operation during the past four years. If we take 1944, 1945, 1946 and 1947, there were 51 persons executed. Of those 28 would not have been sentenced to death if this Amendment had been the law of the land. The alternatives before my hon. Friends therefore are these: if they vote for the Amendment of my hon. Friend the Member for Heywood and Radcliffe, sentences of death and executions will go on at the same rate as they have been going on in the past, assuming that the same number of offences are committed.

Mr. Anthony Greenwood: And assuming the same Home Secretary as well.

Mr. Ede: With another Home Secretary it might not follow that there would be fewer executions. The effect of voting for the Government Amendment will be that the number of sentences of death will be reduced in about the proportions I have named, and possibly, as some of my hon. Friends have assumed, if the particular crimes aimed at by this sentence become fewer, the proportion of sentences of death will be even lower than during the past four years. My hon. Friends therefore have the opportunity of voting for my hon. Friend's Amendment, under which nothing will be done and the law will remain as it is, or they have the opportunity of voting for the Government


Clause which will reduce the number of sentences of death and executions in about the proportion that I have mentioned.

Mr. Emrys Roberts: Will the Home Secretary allow me to intervene. I apologise for interrupting him, but I think there is a real point here. At the time the Government new Clause is put, assuming that the House has previously carried the Government Motion to disagree with the Lords, the state of this Bill will be that the death penalty will be suspended for five years. On that argument every vote against the Government's new Clause is a vote for the suspension of the death penalty for five years.

Mr. Ede: But again, after the history of the last three months, knowing that that will be completely ineffective. After the speeches made in another place, I cannot assume that if we sent Clause 1 back, as we sent it in April, there would be any other result than that it would again be rejected.

Mr. Frank Byers: May I ask the right hon. Gentleman whether it is a fact that he is reasonably sure that another place will accept his compromise Amendment?

Mr. Ede: I am not going to pre-judge what another place will do when they are presented with a new issue. I have no doubt myself, and I would have thought that hon. Members would have no doubt, what they would do if they were again presented with the old issue.

Mr. Keeling: The right hon. Gentleman has said that during the last four years 28 people were hanged who, under his new Clause, would not have been sentenced to death at all. I presume that the majority of those 28 were hanged at a time when he had a full right to recommend that they should be reprieved. How can he ask this House to reprieve, as it were, retrospectively a large number—[Interruption]—to reprieve retrospectively or posthumously a large number of men whom he did not think it right to reprieve in the exercise of his discretion?

Mr. Ede: I have tried to be helpful to the House in this matter and I do not

think that the hon. Gentleman has been quite helpful in the interruption he has made.

Mr. Keeling: What is the answer?

Mr. Ede: The answer is, that there were 28 people sentenced to death under the law as it was and under the custom that then prevailed, in whose cases no recommendation was made for the exercise of the Prerogative. Under the Government Clause, those 28 people could not have been sentenced to death. I am not talking of retrospective reprieves. I am suggesting that, with regard to the future, if those same 51 cases, or similar cases came up, the effect would be that only 23 sentences of death would in fact have been passed.
The House has been asked by the right hon. Member for the Scottish Universities to have regard to the difficulties that will be created by the Clause, but according to the best legal authorities the present law is not without its difficulties. I have been handed a copy of Stephen's "Digest of the Criminal Law" in which he deals with the way in which the law on this matter has been created. He says:
The intricacy, confusion, and uncertainty of this branch of the law may be traced to the statute 23 Hen. 8 … which took away the benefit of clergy in cases of 'wilful murder of malice prepensed,' and which thus created the necessity of preserving the expression 'malice prepense,' and at the same time explaining it away. Coke endeavoured to effect this by the doctrine of constructive or fictitious malice, of which, if not the author, he was the most conspicuous expounder, and he showed in his exposition of it that utter incapacity for anything like correct language or consecutive thought which was one of his great characteristics.

Mr. Churchill: What is the date of the quotation?

Mr. Ede: I do not know. The book is 1894—
Hale amplifies Coke, Foster rationalises Hale, and the judges have, in an unsystematic occasional way, worked out, bit by bit, the result recorded in the text.
I suggest that what the Government are putting before the House tonight is a method by which the steady amelioration of the law can be carried forward at this stage in a way which will not violently affect public opinion in this country, that will enable a very substantial improvement to be made and, at the same time, will assure that part of public opinion


which we believe to be reasonably alarmed at too wide an extension of mercy at this time to feel that this Clause amply safeguards those things about whose safety they have misgivings.

Mr. H. Strauss: Does the right hon. Gentleman agree that under the Clause no wife murderer in future can be condemned to death unless he uses either

systematic administration of poison or an explosive?

Mr. Ede: I should think that that is probably the result.

Question put, "That this House doth disagree with the Lords in the said Amendment."

The House divided: Ayes, 332; Noes, 196.

Division No. 261.]
AYES.
[10.8 p.m.


Acland, Sir Richard
Davies, Haydn (St. Pancras, S.W.)
Hoy, J.


Adams, Richard (Balham)
Davies, R. J. (Westhoughton)
Hubbard, T.


Adams, W. T. (Hammersmith, South)
Deer, G.
Hudson, J. H. (Ealing, W.)


Alexander, Rt. Hon. A. V.
de Freitas, Geoffrey
Hughes, Emrys (S. Ayr)


Allen, A. C. (Bosworth)
Delargy, H. J.
Hughes, Hector (Aberdeen, N.)


Allen, Scholefield (Crewe)
Diamond, J.
Hughes, H. D. (W'lverh'pton, W.)


Alpass, J. H.
Dobbie, W.
Hutchinson, H. L. (Rusholme)


Attewell, H. C.
Dodds, N. N.
Hynd, H. (Hackney, C.)


Attlee, Rt. Hon. C. R.
Donovan, T.
Irvine, A. J. (Liverpool)


Awbery, S. S.
Driberg, T. E. N.
Irving, W. J. (Tottenham, N.)


Ayles, W. H.
Dugdale, J. (W. Bromwich)
Isaacs, Rt. Hon. G. A.


Ayrton Gould, Mrs. B.
Durbin, E. F. M.
Janner, B.


Bacon, Miss A.
Dye, S.
Jay, D. P. T.


Baird, J.
Ede, Rt. Hon. J. C.
Jeger, G. (Winchester)


Barnes, Rt. Hon. A. J.
Edelman, M.
Jeger, Dr. S. W. (St. Pancras, S.E.)


Barstow, P. G.
Edwards, John (Blackburn)
Jenkins, R. H.


Barton, C.
Edwards, Rt. Hon. N. (Caerphilly)
Johnston, Douglas


Battley, J. R.
Edwards, W. J. (Whitechapel)
Jones, Rt. Hon. A. C. (Shipley)


Bechervaise, A. E.
Evans, Albert (Islington, W.)
Jones, D. T. (Hartlepools)


Belcher, J. W.
Evans, E. (Lowestoft)
Jones, Elwyn (Plaistow)


Benson, G.
Evans, John (Ogmore)
Jones, J. H. (Bolton)


Berry, H.
Ewart, R.
Jones, P. Asterley (Hitchin)


Beswick, F.
Fairhurst, F.
Keenan, W.


Bevan, Rt. Hon. A. (Ebbw Vale)
Farthing, W. J.
Kendall, W. D.


Bing, G. H. C.
Fernyhough, E.
Kenyon, C.


Binns, J.
Field, Capt. W. J.
Key, Rt. Hon. C. W.


Blackburn, A. R.
Fletcher, E. G. M. (Islington, E.)
King, E. M.


Blenkinsop, A.
Follick, M.
Kinghorn, Sqn.-Ldr. E.


Blyton, W. R.
Foot, M. M.
Kinley, J.


Bottomley, A. G.
Forman, J. C.
Kirby, B. V.


Bowden, Flg. Offr. H. W.
Fraser, T. (Hamilton)
Lang, G.


Braddock, Mrs. E. M. (L'pl. Exch'ge)
Freeman, J. (Watford)
Lawson, Rt. Hon. J. J.


Braddock, T. (Mitcham)
Gaitskell, Rt. Hon. H. T. N.
Lee, F. (Hulme)


Bramall, E. A.
Gallacher, W.
Lee, Miss J. (Cannock)


Brook, D. (Halifax)
Ganley, Mrs. C. S.
Leonard, W.


Brooks, T. J. (Rothwell)
George, Lady M. Lloyd (Anglesey)
Leslie, J. R.


Brown, George (Belper)
Gibbins, J.
Lever, N. H.


Brown, T. J. (Ince)
Gibson, C. W.
Levy, B. W.


Burden, T. W.
Gilzean, A.
Lewis, J. (Bolton)


Burke, W. A.
Glanville, J. E. (Consett)
Lindgren, G. S.


Butler, H. W. (Hackney, S.)
Gooch, E. G.
Lipton, Lt.-Col. M.


Byers, Frank
Gordon-Walker, P. C.
Longden, F.


Callaghan, James
Granville, E. (Eye)
Lyne, A. W.


Carmichael, James
Greenwood, A. W. J. (Heywood)
McAdam, W.


Castle, Mrs. B. A.
Grey, C. F.
McAllister, G.


Chamberlain, R. A.
Griffiths, Rt. Hon. J. (Llanelly)
McEntee, V. La T.


Champion, A. J.
Griffiths, W. D. (Moss Side)
McGhee, H. G.


Chetwynd, G. R.
Guest, Dr. L. Haden
Mack, J. D.


Cobb, F. A.
Gunter, R. J.
McKay, J. (Wallsend)


Cocks, F. S.
Guy, W. H.
Mackay, R. W. G. (Hull, N.W.)


Coldrick, W.
Haire, John E. (Wycombe)
McKinlay, A. S.


Collindridge, F.
Hale, Leslie
McLeavy, F.


Collins, V. J.
Hall, Rt. Hon. Glenvil
MacMillan, M. K. (Western Isles)


Colman, Miss G. M.
Hamilton, Lieut.-Col. R.
McNeil, Rt. Hon. H.


Comyns, Dr. L.
Hannan, W. (Maryhill)
Macpherson, T. (Romford)


Cook, T. F.
Hardman, D. R.
Mallalieu, E. L. (Brigg)


Cooper, Wing-Comdr. G.
Hardy, E. A.
Mallalieu, J. P. W. (Huddersfield)


Corbet, Mrs. F. K. (Camb'well, N.W.)
Harris, H. Wilson (Cambridge Univ.)
Mann, Mrs. J.


Corlett, Dr. J.
Harrison, J.
Manning, C. (Camberwell, N.)


Cove, W. G.
Hastings, Dr. Somerville
Manning, Mrs. L. (Epping)


Crawley, A.
Haworth, J.
Marquand, H. A.


Cripes, Rt. Hon. Sir S.
Henderson, Rt. Hn. A. (Kingswinford)
Marshall, F. (Brightside)


Crossman, R. H. S.
Henderson, Joseph (Ardwick)
Mathers, Rt. Hon. George


Daines, P.
Herbison, Miss M.
Mayhew, C. P.


Dalton, Rt. Hon. H.
Hewitson, Capt. M.
Mellish, R. J.


Davies, Edward (Burslem)
Hobson, C. R.
Messer, F.


Davies, Ernest (Enfield)
Holman, P.
Middleton, Mrs. L.


Davies, Harold (Leek)
Holmes, H. E. (Hemsworth)
Mikardo, Ian




Millington, Wing-Comdr E. R.
Roberts, Emrys (Merioneth)
Thurtle, Ernest


Mitchison, G. R.
Roberts, Goronwy (Caernarvonshire)
Tiffany, S.


Monslow, W.
Roberts, W. (Cumberland, N.)
Timmons, J.


Moody, A. S.
Rogers, G. H. R.
Titterington, M. F.


Morgan, Dr. H. B.
Ross, William (Kilmarnock)
Tolley, L.


Morley, R.
Royle, C.
Tomlinson, Rt. Hon. G.


Morris, P. (Swansea, W.)
Sargood, R.
Ungoed-Thomas, L.


Morrison, Rt. Hon. H. (Lewisham, E.)
Segal, Dr. S.
Usborne, Henry


Mort, D. L.
Shackleton, E. A. A.
Vernon, Maj. W. F.


Moyle, A.
Shawcross, C. N. (Widnes)
Viant, S. P.


Nally, W.
Shawcross, Rt. Hn. Sir H. (St. Helens)
Wadsworth, G.


Neal, H. (Clay Cross)
Shurmer, P.
Walker, G. H.


Nichol, Mrs. M. E. (Bradford, N.)
Silkin, Rt. Hon. L.
Warbey, W. N.


Nicholls, H. R. (Stratford)
Silverman, J. (Erdington)
Watkins, T. E.


O'Brien, T.
Silverman, S. S. (Nelson)
Weitzman, D.


Oldfield, W. H.
Simmons, C. J.
Wells, W. T. (Walsall)


Oliver, G. H.
Skeffington, A. M.
West, D. G.


Orbach, M.
Skeffington-Lodge, T. C.
Westwood, Rt. Hon. J.


Paget, R. T.
Skinnard, F. W.
Wheatley, Rt. Hn. John (Edinb'gh, E.)


Paling, Rt. Hon. Wilfred (Wentworth)
Smith, C. (Colchester)
White, H. (Derbyshire, N.E.)


Paling, Will T. (Dewsbury)
Smith, Ellis (Stoke)
Whiteley, Rt. Hon. W.


Palmer, A. M. F.
Smith, H. N. (Nottingham, S.)
Wigg, George


Parker, J.
Solley, L. J.
Wilcock, Group-Capt. C. A. D.


Parkin, B. T.
Sorensen, R. W.
Wilkes, L.


Paton, Mrs. F. (Rushcliffe)
Soskice, Rt. Hon. Sir Frank
Wilkins, W. A.


Paton, J. (Norwich)
Sparks, J. A.
Willey, F. T. (Sunderland)


Pearson, A.
Steele, T.
Willey, O. G. (Cleveland)


Peart, T. F.
Stewart, Michael (Fulham, E.)
Williams, J. L. (Kelvingrove)


Perrins, W.
Stokes, R. R.
Williams, R. W. (Wigan)


Popplewell, E.
Strachey, Rt. Hon. J.
Williams, Rt. Hon. T. (Don Valley)


Porter, E. (Warrington)
Strauss, Rt. Hon. G. R. (Lambeth)
Williams, W. R. (Heston)


Porter, G. (Leeds)
Stubbs, A. E.
Willis, E.


Proctor, W. T.
Summerskill, Dr. Edith
Wills, Mrs. E. A.


Pryde, D. J.
Swingler, S.
Wilson, Rt. Hon. J. H.


Pursey, Comdr. H.
Sylvester, G. O.
Wise, Major F. J.


Randall, H. E.
Symonds, A. L.
Woods, G. S.


Ranger, J.
Taylor, R. J. (Morpeth)
Wyatt, W.


Rankin, J.
Taylor, Dr. S. (Barnet)
Yates, V. F.


Rees-Williams, D. R.
Thomas, D. E. (Aberdare)
Young, Sir R. (Newton)


Reeves, J.
Thomas, George (Cardiff)
Younger, Hon. Kenneth


Reid, T. (Swindon)
Thomas, Ivor (Keighley)



Rhodes, H.
Thomas, I. O. (Wrekin)
TELLERS FOR THE AYES:


Ridealgh, Mrs. M.
Thomas, John R. (Dover)
Mr. Snow and Mr. G. Wallace


Robens, A.
Thorneycroft, Harry (Clayton)





NOES.


Aitken, Hon. Max
Donner, P. W.
Hogg, Hon. Q.


Anderson, Rt. Hn. Sir J. (Scot. Univ.)
Dower, E. L. G. (Caithness)
Holmes, Sir J. Stanley (Harwich)


Assheton, Rt. Hon. R.
Drayson, G. B.
Hope, Lord J.


Astor, Hon. M.
Drewe, C.
Howard, Hon. A.


Baldwin, A. E.
Dugdale, Maj. Sir T. (Richmond)
Hudson, Rt. Hon. R. S. (Southport)


Barlow, Sir J.
Duncan, Rt. Hn. Sir A. (City of Lond.)
Hulbert, Wing-Cdr. N. J.


Beamish, Maj. T. V. H.
Duthie, W. S.
Hurd, A.


Beechman, N. A.
Eccles, D. M.
Hutchison, Lt.-Cm. Clark (E'b'rgh W.)


Bennett, Sir P.
Elliot, Lieut.-Col. Rt. Hon. Walter
Hutchison, Col. J. R. (Glasgow, C.)


Birch, Nigel
Erroll, F. J.
Jarvis, Sir J.


Boles, Lt.-Col. D. C. (Wells)
Fleming, Sqn.-Ldr. E. L.
Jeffreys, General Sir G.


Bossom, A. C.
Fletcher, W. (Bury)
Jennings, R.


Bower, N.
Foster, J. G. (Northwich)
Joynson-Hicks, Hon. L. W.


Boyd-Carpenter, J. A.
Fox, Sir G.
Keeling, E. H.


Bracken, Rt. Hon. Brendan
Fraser H. C. P. (Stone)
Kerr, Sir J. Graham


Braithwaite, Lt.-Comdr. J. G.
Fraser, Sir I. (Lonsdale)
Kingsmill, Lt.-Col. W. H.


Bromley-Davenport, Lt.-Col. W.
Fyfe, Rt. Hon. Sir D. P. M.
Lambert, Hon. G.


Buchan-Hepburn, P. G. T.
Gage, C.
Lancaster, Col. C. G.


Butcher, H. W.
Galbraith, Cmdr. T. D.
Law, Rt. Hon. R. K.


Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n)
Gammans, L. D.
Legge-Bourke, Maj. E. A. H.


Carson, E.
Gates, Maj. E. E.
Lennox-Boyd, A. T.


Challen, C.
George, Maj. Rt. Hn. G. Lloyd (P'ke)
Lindsay, M. (Solihull)


Channon, H.
Glyn, Sir R.
Linstead, H. N.


Churchill, Rt. Hon. W. S.
Gomme-Duncan, Col. A.
Lloyd, Maj. Guy (Renfrew, E.)


Clarke, Col. R. S.
Grant, Lady
Low, A. R. W.


Clifton-Brown, Lt.-Col. G.
Gridley, Sir A.
Lucas, Major Sir J.


Cooper-Key, E. M.
Griffiths, D. (Rother Valley)
Lucas-Tooth, Sir H.


Corbet, Lieut.-Col. U. (Ludlow)
Grimston, R. V.
Lyttelton, Rt. Hon. O.


Crookshank, Capt. Rt. Hon. H. F. C.
Hannon, Sir P. (Moseley)
MacAndrew, Col. Sir C.


Crosthwaite-Eyre, Col. O. E.
Harden, J. R. E.
McCallum, Maj. D.


Crowder, Capt. John E.
Hare, Hon. J. H. (Woodbridge)
Macdonald, Sir P. (I. of Wight)


Cuthbert, W. N.
Harris, F. W. (Croydon, N.)
McFarlane, C. S.


Daggar, G.
Harvey, Air-Comdre. A. V.
Mackeson, Brig. H. R.


Darling, Sir W. Y.
Haughton, S. G.
McKie, J. H. (Galloway)


Davidson, Viscountess
Headlam, Lieut.-Col. Rt. Hon. Sir C.
Maclay, Hon. J. S.


De la Bère, R.
Henderson, John (Cathcart)
Maclean, F. H. R. (Lancaster)


Digby, S. W.
Herbert, Sir A. P.
MacLeod, J.


Dodds-Parker, A. D.
Hinchingbrooke, Viscount
Macmillan, Rt. Hon. Harold (Bromley)







Macpherson, N. (Dumfries)
Poole, O. B. S. (Oswestry)
Stoddart-Scott, Col. M.


Maitland, Comdr. J. W.
Prescott, Stanley
Strauss, Henry (English Universities)


Manningham-Buller, R. E.
Price, M. Philips
Stuart, Rt. Hon. J. (Moray)


Marlowe, A. A. H.
Price-White, Lt.-Col. D.
Studholme, H. G.


Marples, A. E.
Prior-Palmer, Brig. O.
Sutcliffe, H.


Marsden, Capt. A.
Raikes, H. V.
Taylor, C. S. (Eastbourne)


Marshall, S. H. (Sutton)
Ramsay, Maj. S.
Thomas, J. P. L. (Hereford)


Maude, J. C.
Rayner, Brig. R.
Thorneycroft, G. E. P. (Monmouth)


Mellor, Sir J.
Reed, Sir S. (Aylesbury)
Thornton-Kemsley, C. N.


Molson, A. H. E.
Reid, Rt. Hon. J. S. C. (Hillhead)
Thorp, Brigadier R. A. F.


Moore, Lt.-Col. Sir T.
Roberts, H. (Handsworth)
Touche, G. C.


Morris-Jones, Sir H.
Roberts, P. G. (Ecclesall)
Turner-Samuels, M.


Morrison, Maj. J. G. (Salisbury)
Robertson, Sir D. (Streatham)
Vane, W. M. F.


Morrison, Rt. Hon. W. S. (Cir'cester)
Robinson, Roland
Wakefield, Sir W. W.


Mott-Radclyffe, C. E.
Ropner, Col. L.
Ward, Hon. G. R.


Neven-Spence, Sir B.
Ross, Sir R. D. (Londonderry)
Watt, Sir G. S. Harvie


Nicholson, G.
Sanderson, Sir F.
Wheatley, Colonel M. J. (Dorset, E.)


Nield, B. (Chester)
Savory, Prof. D. L.
White, Sir D. (Fareham)


Noble, Comdr. A. H. P.
Sharp, Granville
White, J. B. (Canterbury)


Nutting, Anthony
Shepherd, S. (Newark)
Williams, C. (Torquay)


Odey, G. W.
Shepherd, W. S. (Bucklow)
Williams, Gerald (Tonbridge)


O'Neill, Rt. Hon. Sir H.
Smiles, Lt.-Col. Sir W.
Willoughby de Eresby, Lord


Orr-Ewing, I. L.
Smith, E. P. (Ashford)
Winterton, Rt. Hon. Earl


Osborne, C.
Smithers, Sir W.
York, C.


Peake, Rt. Hon. O.
Snadden, W. M.



Peto, Brig. C. H. M.
Spearman, A. C. M.
TELLERS FOR THE NOES:


Pickthorn, K.
Spence, H. R.
Sir Arthur Young and


Pitman, I. J.
Stanley, Rt. Hon. O.
Major Conant.


Ponsonby, Col. C. E.
Stewart, J. Henderson (Fife E.)

Mr. Ede: I beg to move as an Amendment, to the words so restored to the Bill, in page 1, line 9, to leave out Subsection (1), and to insert:

"(1) During the continuance in force of this section, no person shall be sentenced by a court to death for murder unless it is charged in the indictment or inquisition and found by the jury that the murder was committed with express malice as defined by this section, and either—

(a) that the murder was committed in the course of, or immediately before or after and in connection with, the commission of an offence described in the Schedule to this Act (Offences involving death penalty for murder), or on attempt to commit such an offence; or
(b) that the murder was committed in the course of or for the purpose of resisting or avoiding or preventing an arrest in course of law, or of escaping or assisting an escape from legal custody, or for the purpose of obstructing a constable acting in the execution of his duty or any person assisting a constable so acting; or
(c) that the murder was committed by means of, and in the course of the systematic administration of, poison or any other noxious substance; or
(d) that the murder was committed by a person detained in a prison or other institution to which the Prison Acts, 1865 to 1898, apply, and that the person murdered was an officer of any such institution acting in the execution of his duty or a person assisting such an officer so acting; or
(e) that the accused has been convicted of murder committed on a previous occasion

(2) Where, by virtue of the foregoing Subsection, a court is precluded from passing sentence of death on a person convicted of murder, the court shall sentence the offender to imprisonment for life.

(3) If in any indictment or inquisition for murder it is charged that the accused has been convicted of murder committed on a previous occasion, the accused shall in the first instance be arraigned on so much only of the indictment or inquisition as charges the murder for which he is to be tried; and if on arraignment he pleads guilty or is found guilty by the jury, the jury shall, unless he pleads guilty to having been previously convicted as aforesaid, be charged to inquire whether he has been so convicted, and in that case it shall not be necessary to swear the jury again.
(4) For the purposes of this section, a murder shall be deemed, in relation to every person guilty thereof, to be committed with express malice if the act causing the death is done with intent to kill or maim any person, and in the latter case is an act which might reasonably be expected to endanger life.
(5) For the avoidance of doubt it is hereby declared that where a person is charged with murder on an indictment or inquisition charging any of the matters specified in subsection (1) of this section, and the jury are of opinion that those matters are not established by the evidence but that the accused is shown by the evidence to be guilty of murder or any other offence of which a person charged with murder may lawfully be convicted, the jury may return a verdict of guilty of murder or of any such other offence as aforesaid."

Question, "That the words proposed to be left out stand part of the words so restored to the Bill," put, and negatived.

Question proposed, "That those words be there inserted."

Mr. Anthony Greenwood: I beg to move, to leave out from the first word "murder" to end, and insert instead thereof:


and every enactment requiring a court to pronounce or record a sentence of death in any case of murder shall be construed as requiring the court to sentence the offender to imprisonment for life.
(2) Nothing in this section shall affect the provisions of section fifty-three of the Children and Young Persons Act, 1933 (which prohibits the passing of sentence of death against a person under the age of eighteen years, and requires the court, in lieu thereof, to sentence him to be detained during His Majesty's Pleasure).
(3) This section shall come into force on such day as the Secretary of State may by order appoint and shall continue in force for a period of five years from that date, and shall then expire, but without prejudice to the validity of anything done thereunder:
Provided that if at any time before the expiration of the period aforesaid an Address is presented to His Majesty by each House of Parliament praying that this section be continued in force without limitation of time or for any extended period specified in the Address, His Majesty may by Order in Council make provision for that purpose; and where any such Order in Council continues this section for any such extended period, the provisions of this subsection (including this proviso) shall have effect as if that extended

period were substituted for the period of five years mentioned in this section
(4) In the application of this section to Scotland—

(a) any reference to murder shall be construed as including a reference to any offence mentioned in section two or section three of the Criminal Law (Scotland) Act, 1829 (which sections make punishable by death certain crimes of violence against His Majesty's subjects);
(b) the reference to imprisonment for life shall be construed as a reference to penal servitude for life;
(c) for the reference to section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to section fifty-seven of the Children and Young Persons (Scotland) Act 1937."

Mr. Royle: I beg to second the Amendment to the proposed Amendment.

Question put, "That the words proposed to be left out stand part of the Amendment."

The House divided: Ayes, 319; Noes, 186.

Division No. 262.]
AYES.
[10.20 p.m.


Acland, Sir Richard
Carmichael, James
Evans, E. (Lowestoft)


Adams, Richard (Balham)
Castle, Mrs. B. A.
Evans, John (Ogmore)


Adams, W. T. (Hammersmith, South)
Chamberlain, R. A.
Ewart, R.


Alexander, Rt. Hon. A. V.
Champion, A. J.
Fairhurst, F.


Allen, A. C. (Bosworth)
Chetwynd, G. R.
Farthing, W. J.


Alpass, J. H.
Cobb, F. A.
Field, Capt. W. J.


Attewell, H. C.
Cocks, F. S.
Fletcher, E. G. M. (Islington, E.)


Attlee, Rt. Hon. C. R.
Coldrick, W.
Follick, M.


Awbery, S. S.
Collindridge, F.
Foot, M. M.


Ayles, W. H.
Collins, V. J.
Forman, J. C.


Ayrton Gould, Mrs. B.
Colman, Miss G. M.
Fraser, T. (Hamilton)


Bacon, Miss A.
Comyns, Dr. L.
Freeman, J. (Watford)


Baird, J.
Cook, T. F.
Gaitskell, Rt. Hon. H. T. N.


Barnes, Rt. Hon. A. J.
Cooper, Wing-Comdr. G.
Ganley, Mrs. C. S.


Barstow, P. G.
Corbet, Mrs. F. K. (Camb'weil, N.W.)
George, Lady M. Lloyd (Anglesey)


Barton, C.
Corlett, Dr. J.
Gibbins, J.


Battley, J. R.
Cove, W. G.
Gibson, C. W.


Bechervaise, A. E.
Cripps, Rt. Hon. Sir S.
Gilzean, A.


Belcher, J. W.
Crossman, R. H. S.
Glanville, J. E. (Consett)


Benson, G.
Daggar, G.
Gooch, E. G.


Berry, H.
Daines, P.
Gordon-Walker, P. C.


Beswick, F.
Dalton, Rt. Hon. H.
Granville, E. (Eye)


Bevan, Rt. Hon. A. (Ebbw Vale)
Davies, Edward (Burslem)
Grey, C. F.


Bing, G. H. C.
Davies, Ernest (Enfield)
Griffiths, D. (Rother Valley)


Binns, J.
Davies, Harold (Leek)
Griffiths, Rt. Hon. J. (Llanelly)


Blackburn, A. R.
Davies, Haydn (St. Pancras, S.W.)
Griffiths, W. D. (Moss Side)


Blenkinsop, A.
Deer, G.
Guest, Dr. L. Haden


Blyton, W. R.
de Freitas, Geoffrey
Gunter, R. J.


Bottomley, A. G.
Delargy, H. J.
Guy, W. H.


Bowden, Flg. Offr. H. W.
Diamond, J.
Haire, John E. (Wycombe)


Bowles, F. G. (Nuneaton)
Dobbie, W.
Hale, Leslie


Braddock, Mrs. E. M. (L'pl. Exch'ge)
Dodds, N. N.
Hall, Rt. Hon. Glenvil


Bramall, E. A.
Donovan, T.
Hamilton, Lieut.-Col. R.


Brook, D. (Halifax)
Driberg, T. E. N.
Hannan, W. (Maryhill)


Brooks, T. J. (Rothwell)
Dugdale, J. (W. Bromwich)
Hardman, D. R.


Brown, George (Belper)
Durbin, E. F. M.
Hardy, E. A.


Brown, T. J. (Ince)
Dye, S.
Harris, H. Wilson (Cambridge Univ.)


Bruce, Maj. D. W. T.
Ede, Rt. Hon. J. C.
Harrison, J.


Burden, T. W.
Edelman, M.
Hastings, Dr. Somerville


Burke, W. A.
Edwards, John (Blackburn)
Henderson, Rt. Hn. A. (Kingswinford)


Butler, H. W. (Hackney, S.)
Edwards, Rt. Hon. N. (Caerphilly)
Henderson, Joseph (Ardwick)


Byers, Frank
Edwards, W. J. (Whitechapel)
Herbison, Miss M.


Callaghan, James
Evans, Albert (Islington, W.)
Hewitson, Capt M.




Hobson, C. R.
Mellish, R. J.
Smith, C. (Colchester)


Holman, P.
Messer, F.
Smith, Ellis (Stoke)


Holmes, H. E. (Hemsworth)
Middleton, Mrs. L.
Smith, H. N. (Nottingham, S.)


Horabin, T. L.
Millington, Wing-Comdr E. R.
Solley, L. J.


Hoy, J.
Mitchison, G. R.
Sorensen, R. W.


Hubbard, T.
Monslow, W.
Soskice, Rt. Hon. Sir Frank


Hughes, Hector (Aberdeen, N.)
Moody A. S.
Sparks, J. A.


Hughes, H. D. (W'lverh'pton., W.)
Morgan, Dr. H. B.
Steele, T.


Hutchinson, H. L. (Rusholme)
Morley, R.
Stewart, Michael (Fulham, E.)


Hynd, H. (Hackney, C.)
Morrison, Rt. Hon. H. (Lewisham, E.)
Strachey, Rt. Hon. J.


Irvine, A. J. (Liverpool)
Mort, D. L.
Strauss, Rt. Hon. G. R. (Lambeth)


Irving, W. J. (Tottenham, N.)
Moyle, A.
Stubbs, A. E.


Isaacs, Rt. Hon. G. A.
Neal, H. (Clay Cross)
Summerskill, Dr. Edith


Janner, B.
Nichol, Mrs. M. E. (Bradford, N.)
Swingler, S.


Jay, D. P. T.
Nicholls, H. R. (Stratford)
Sylvester, G. O.


Jeger, G. (Winchester)
O'Brien, T.
Symonds, A. L.


Jeger, Dr. S. W. (St. Pancras, S.E.)
Oldfield, W. H.
Taylor, R. J. (Morpeth)


Jenkins, R. H.
Oliver, G. H.
Taylor, Dr. S. (Barnet)


Johnston, Douglas
Orbach, M.
Thomas, D. E. (Aberdare)


Jones, Rt. Hon. A. C. (Shipley)
Paget, R. T.
Thomas, Ivor (Keighley)


Jones, D. T. (Hartlepools)
Paling, Rt. Hon. Wilfred (Wentworth)
Thomas, I. O. (Wrekin)


Jones, Elwyn (Plaistow)
Paling, Will T. (Dewsbury)
Thomas, John R. (Dover)


Jones, J. H. (Bolton)
Palmer, A. M. F.
Thorneycroft, Harry (Clayton)


Jones, P. Asterley (Hitchin)
Parker, J.
Thurtle, Ernest


Keenan, W.
Parkin, B. T.
Tiffany, S.


Kendall, W. D.
Paton, Mrs. F. (Rushcliffe)
Timmons, J.


Kenyon, C.
Paton, J. (Norwich)
Titterington, M. F.


Key, Rt. Hon. C. W.
Pearson, A.
Tolley, L.


King, E. M.
Peart, T. F.
Tomlinson, Rt. Hon. G.


Kinley, J.
Perrins, W.
Turner-Samuels, M.


Kirby, B. V.
Popplewell, E.
Ungoed-Thomas, L.


Lang, G.
Porter, E. (Warrington)
Usborne, Henry


Lawson, Rt. Hon. J. J.
Price, M. Philips
Vernon, Maj. W. F.


Lee, F. (Hulme)
Proctor, W. T.
Viant, S. P.


Lee, Miss J. (Cannock)
Pryde, D. J.
Wadsworth, G.


Leonard, W.
Pursey, Comdr. H.
Walker, G. H.


Leslie, J. R.
Randall, H. E.
Watkins, T. E.


Lever, N. H.
Ranger, J.
Weitzman, D.


Levy, B. W.
Rankin, J.
Wells, W. T. (Walsall)


Lewis, J. (Bolton)
Rees-Williams, D. R.
West, D. G.


Lindgren, G. S.
Reeves, J.
Westwood, Rt. Hon. J.


Lipson, D. L.
Reid, T. (Swindon)
Wheatley, Rt. Hn. John (Edinb'gh, E.)


Lipton, Lt.-Col. M.
Rhodes, H.
White, H. (Derbyshire, N.E.)


Longden, F.
Ridealgh, Mrs. M.
Whiteley, Rt. Hon. W.


Lyne, A. W.
Robens, A.
Wigg, George


McAdam, W.
Roberts, Emrys (Merioneth)
Wilcock, Group-Capt C. A. B.


McAllister, G.
Roberts, Goronwy (Caernarvonshire)
Wilkes, L.


McEntee, V. La T.
Roberts, W. (Cumberland, N.)
Wilkins, W. A.


Mack, J. D.
Rogers, G. H. R.
Willey, F. T. (Sunderland)


McKay, J. (Wallsend)
Ross, William (Kilmarnock)
Willey, O. G. (Cleveland)


Mackay, R. W. G. (Hull, N.W.)
Sargood, R.
Williams, J. L. (Kelvingrove)


McKinley, A. S.
Segal, Dr. S.
Williams, R. W. (Wigan)


McLeavy, F.
Shackleton, E. A. A.
Williams, Rt. Hon. T. (Don Valley)


MacMillan, M. K. (Western Isles)
Sharp, Granville
Williams, W. R. (Heston)


McNeil, Rt. Hon. H.
Shawcross, C. N. (Widnes)
Willis, E.


Macpherson, T. (Romford)
Shawcross, Rt. Hn. Sir H. (St Helens)
Wills, Mrs. E. A.


Mallalieu, E. L. (Brigg)
Shinwell, Rt. Hon. E.
Wilson, Rt. Hon. J. H.


Mann, Mrs. J.
Shurmer, P.
Wise, Major F. J.


Manning, C. (Camberwell, N.)
Silkin, Rt. Hon. L.
Woods, G. S.


Manning, Mrs. L. (Epping)
Silverman, S. S. (Nelson)
Wyatt, W.


Marquand, H. A.
Simmons, C. J.
Young, Sir R. (Newton)


Marshall, F. (Brightside)
Skeffington, A. M.
Younger, Hon. Kenneth


Mathers, Rt. Hon. George
Skeffington-Lodge, T. C.



Mayhew, C. P.
Skinnard, F. W.
TELLERS FOR THE AYES:




Mr. Snow and Mr. G. Wallace.




NOES.


Agnew, Cmdr. P. G.
Braithwaite, Lt.-Comdr. J. G.
De la Bère, R.


Aitken, Hon. Max
Bromley-Davenport, Lt.-Col. W.
Digby, S. W.


Anderson, Rt. Hn. Sir J. (Scot. Univ.)
Buchan-Hepburn, P. G. T.
Dodds-Parker, A. D.


Assheton, Rt. Hon. R.
Butcher, H. W.
Donner, P. W.


Astor, Hon. M.
Carson, E.
Dower, E. L. G. (Caithness)


Barlow, Sir J.
Channon, H.
Drayson, G. B.


Baxter, A. B.
Churchill, Rt. Hon. W. S.
Drewe, C.


Beamish, Maj. T. V. H.
Clarke, Col. R. S.
Dugdale, Maj. Sir T. (Richmond)


Beechman, N. A.
Clifton-Brown, Lt.-Col. G.
Duncan, Rt. Hn. Sir A. (City of Lond.)


Bennett, Sir P.
Conant, Maj. R. J. E.
Duthie, W. S.


Birch, Nigel
Crookshank, Capt. Rt. Hon. H. F. C.
Eccles, D. M.


Boles, Lt.-Col. D. C. (Wells)
Crosthwaite-Eyre, Col. O. E.
Elliot, Lieut.-Col Rt. Hon. Walter


Bossom, A. C.
Crowder, Capt. John E.
Errol, F. J.


Bower, N.
Cuthbert, W. N.
Fernyhough, E.


Boyd-Carpenter, J. A.
Darling, Sir W. Y.
Fleming, Sqn.-Ldr. E. L.


Bracken, Rt. Hon. Brendan
Davidson, Viscountess
Fletcher, W. (Bury)







Foster, J. G. (Northwich)
Lloyd, Maj. Guy (Renfrew, E.)
Raikes, H. V.


Fox, Sir G.
Lloyd, Selwyn (Wirral)
Ramsay, Maj. S.


Fraser H. C. P. (Stone)
Low, A. R. W.
Rayner, Brig. R.


Fraser, Sir I. (Lonsdale)
Lucas, Major Sir J.
Reed, Sir S. (Aylesbury)


Fyfe, Rt. Hon. Sir D. P. M.
Lyttelton, Rt. Hon. O.
Reid, Rt. Hon. J. S. C. (Hillhead)


Gage, C.
MacAndrew, Col. Sir C.
Renton, D.


Galbraith, Cmdr. T. D.
McCallum, Maj. D.
Roberts, H. (Handsworth)


Gammans, L. D.
Macdonald, Sir P. (I. of Wight)
Roberts, P. G. (Ecclesall)


Gates, Maj. E. E.
McFarlane, C. S.
Robertson, Sir D. (Streatham)


Gomme-Duncan, Col. A.
Mackeson, Brig. H. R.
Robinson, Roland


Grant, Lady
McKie, J. H. (Galloway)
Ropner, Col. L.


Greenwood, A. W. J. (Heywood)
Maclay, Hon. J. S.
Ross, Sir R. D. (Londonderry)


Gridley, Sir A.
Maclean, F. H. R. (Lancaster)
Savory, Prof. D. L.


Grimston, R. V.
MacLeod, J.
Shepherd, W. S. (Bucklow)


Hannon, Sir P. (Moseley)
Macmillan, Rt. Hon. Harold (Bromley)
Smiles, Lt.-Col. Sir W.


Harden, J. R. E.
Macpherson, N. (Dumfries)
Smith, E. P. (Ashford)


Hare, Hon. J. H. (Woodbridge)
Maitland, Comdr. J. W.
Smithers, Sir W.


Harris, F. W. (Croydon, N.)
Manningham-Buller, R. E.
Snadden, W. M.


Harvey, Air-Comdre. A. V.
Marples, A. E.
Spearman, A. C. M.


Haughton, S. G.
Marsden, Capt. A.
Stanley, Rt. Hon. O.


Haworth, J.
Marshall, S. H. (Sutton)
Stewart, J. Henderson (Fife E.)


Headlam, Lieut.-Cot. Rt. Hon. Sir C.
Maude, J. C.
Stoddart-Scott, Col. M.


Henderson, John (Cathcart)
Mellor, Sir J.
Stokes, R. R.


Herbert, Sir A. P.
Mikardo, Ian
Strauss, Henry (English Universities)


Hogg, Hon. Q.
Morris-Jones, Sir H.
Stuart, Rt. Hon. J. (Moray)


Hollis, M. C.
Morrison, Maj. J. G. (Salisbury)
Studholme, H. G.


Holmes, Sir J. Stanley (Harwich)
Morrison, Rt. Hon. W. S. (Cir'cester)
Sutcliffe, H.


Hope, Lord J.
Mott-Radclyffe, C. E.
Taylor, C. S. (Eastbourne)


Hudson, J. H. (Ealing, W.)
Nally, W.
Thomas, George (Cardiff)


Hughes, Emrys (S. Ayr)
Neven-Spence, Sir B.
Thorneycroft, G. E. P. (Monmouth)


Hulbert, Wing-Cdr. N. J.
Nield, B. (Chester)
Thornton-Kemsley, C. N.


Hurd, A.
Noble, Comdr. A. H. F.
Thorp, Brigadier R. A. F.


Hutchison, Lt.-Cm. Clark (E'b'rgh W.)
Nutting, Anthony
Touche, G. C.


Jarvis, Sir J.
Odey, G. W.
Wakefield, Sir W. W.


Jeffreys, General Sir G.
O'Neill, Rt. Hon. Sir H.
Ward, Hon. G. R.


Jennings, R.
Orr-Ewing, I. L.
Watt, Sir G. S. Harvie


Joynson-Hicks, Hon. L. W.
Osborne, C.
Wheatley, Colonel M. J. (Dorset, E.)


Keeling, E. H.
Peake, Rt. Hon. O.
White, Sir D. (Fareham)


Kerr, Sir J. Graham
Peto, Brig. C. H. M.
White, J. B. (Canterbury)


Kingsmill, Lt.-Col. W. H.
Pickthorn, K.
Williams, C. (Torquay)


Lambert, Hon. G.
Pitman, I. J.
Williams, Gerald (Tonbridge)


Lancaster, Col. C. G.
Ponsonby, Col. C. E.
Willoughby de Eresby, Lord


Langford-Holt, J.
Poole, O. B. S. (Oswestry)
Winterton, Rt. Hon. Earl


Law, Rt. Hon. R. K.
Porter, G. (Leeds)
Young, Sir A. S. L. (Partick)


Lennox-Boyd, A. T.
Prescott, Stanley



Lindsay, M. (Solihull)
Price-White, Lt.-Col. D.
TELLERS FOR THE NOES:


Linstead, H. N.
Prior-Palmer, Brig. O.
Mr. Royle and Mr. McGhee.

Question put, "That the proposed words be there inserted."

The House divided; Ayes, 307; Noes, 209.

Division No. 263.]
AYES.
[10.32 p.m.


Acland, Sir Richard
Bowden, Flg. Offr. H. W.
Cove, W. G.


Adams, Richard (Balham)
Bowles, F. G. (Nuneaton)
Cripps, Rt. Hon. Sir S.


Adams, W. T. (Hammersmith, South)
Braddock, Mrs. E. M. (L'pl Exch'ge)
Crossman, R. H. S.


Alexander, Rt. Hon. A. V.
Bramall, E. A.
Daines, P.


Allen, A. C. (Bosworth)
Brook, D. (Halifax)
Dalton, Rt. Hon. H.


Allen, Scholefield (Crewe)
Brooks, T. J. (Rothwell)
Davies, Edward (Burslem)


Alpass, J. H.
Brown, George (Belper)
Davies, Ernest (Enfield)


Attewell, H. C.
Brown, T. J. (Ince)
Davies, Harold (Leek)


Attlee, Rt. Hon. C. R.
Bruce, Maj. D. W. T.
Davies, Haydn (St Pancras, S.W.)


Awbery, S. S.
Burden, T. W.
Deer, G.


Ayles, W. H.
Burke, W. A.
de Freitas, Geoffrey


Ayrton Gould, Mrs. B.
Butler, H. W. (Hackney, S.)
Delargy, H. J.


Bacon, Miss A.
Callaghan, James
Dobbie, W.


Baird, J.
Carmichael, James
Dodds, N. N.


Barnes, Rt. Hon. A. J.
Castle, Mrs. B. A.
Donovan, T.


Barstow, P. G.
Chamberlain, R. A.
Driberg, T. E. N.


Barton, C.
Champion, A. J.
Dugdale, J. (W. Bromwich)


Bechervaise, A. E.
Chetwynd, G. R.
Durbin, E. F. M.


Belcher, J. W.
Cobb, F. A.
Dye, S.


Benson, G.
Cocks, F. S.
Ede, Rt. Hon. J. C.


Berry, H.
Coldrick, W.
Edwards, John (Blackburn)


Beswick, F.
Collindridge, F.
Edwards, Rt. Hon. N. (Caerphilly)


Bevan, Rt. Hon. A. (Ebbw Vale)
Collins, V. J.
Edwards, W. J. (Whitechapel)


Bing, G. H. C.
Colman, Miss G. M.
Evans, Albert (Islington, W.)


Binns, J.
Comyns, Dr. L.
Evans, E. (Lowestoft)


Blackburn, A. R.
Cook, T. F.
Evans, John (Ogmore)


Blenkinsop, A.
Cooper, Wing-Comdr. G.
Ewart, R.


Blyton, W. R.
Corbet, Mrs. F. K. (Camb'well, N.W.)
Fairhurst, F.


Bottemley, A. G.
Corlett, Dr. J.
Farthing, W. J.




Field, Capt. W. J.
Lindgren, G. S.
Shawcross, C. N. (Widnes)


Fletcher, E. G. M. (Islington, E.)
Lipton, Lt.-Col. M.
Shawcross, Rt. Hn. Sir H. (St. Helens.)


Follick, M.
Longden, F.
Shinwell, Rt. Hon. E.


Foot, M. M.
Lyne, A. W.
Shurmer, P.


Forman, J. C.
McAdam, W.
Silkin, Rt. Hon. L.


Fraser, T. (Hamilton)
McAllister, G.
Silverman, J. (Erdington)


Freeman, J. (Watford)
McEntee, V. La T.
Silverman, S. S. (Nelson)


Gaitskell, Rt. Hon. H. T. N.
Mack, J. D.
Simmons, C. J.


Ganley, Mrs. C. S.
McKay, J. (Wallsend)
Skeffington, A. M.


Gibbins, J.
Mackay, R. W. G. (Hull, N.W.)
Skeffington-Lodge, T. C.


Gibson, C. W.
McKinley, A. S.
Skinnard, F. W.


Gilzean, A.
McLeavy, F.
Smith, C. (Colchester)


Glanville, J. E. (Consett)
MacMillan, M. K. (Western Isles)
Smith, Ellis (Stoke)


Gooch, E. G.
McNeil, Rt. Hon. H.
Smith, H. N. (Nottingham, S.)


Gorden-Walker, P. C.
Macpherson, T. (Romford)
Solley, L. J.


Granville, E. (Eye)
Mallalieu, E. L. (Brigg)
Sorensen, R. W.


Grey, C. F.
Mallalieu, J. P. W. (Huddersfield)
Soskice, Rt. Hon. Sir Frank


Griffiths, Rt. Hon. J. (Llanelly)
Mann, Mrs. J.
Sparks, J. A.


Griffiths, W. D. (Moss Side)
Manning, C. (Camberwell, N.)
Steele, T.


Guest, Dr. L. Haden
Manning, Mrs. L. (Epping)
Stewart, Michael (Futham E.)


Gunter, R. J.
Marquand, H. A.
Strachey, Rt. Hon. J.


Guy, W. H.
Marshall, F. (Brightside)
Strauss, Rt. Hon. G. R. (Lambeth)


Haire, John E. (Wycombe)
Mathers, Rt. Hon. George
Stubbs, A. E.


Hale, Leslie
Mayhew, C. P.
Summerskill, Dr. Edith


Hall, Rt. Hon. Glenvil
Mellish, R. J.
Swingler, S.


Hamilton, Lieut.-Col. R.
Messer, F.
Sylvester, G. O.


Hannan, W. (Maryhill)
Middleton, Mrs. L.
Symonds, A L.


Hardman, D. R.
Millington, Wing-Comdr E. R.
Taylor, R. J. (Morpeth)


Hardy, E. A.
Mitchison, G. R.
Taylor, Dr. S. (Barnet)


Harris, H. Wilson (Cambridge Univ.)
Monslow, W.
Thomas, D. E. (Aberdare)


Harrison, J.
Moody, A. S.
Thomas, George (Cardiff)


Hastings, Dr. Somerville
Morgan, Dr. H. B.
Thomas, Ivor (Keighley)


Henderson, Rt. Hn. A. (Kingswinford)
Morley, R.
Thomas, I O. (Wrekin)


Henderson, Joseph (Ardwick)
Morrison, Rt. Hon. H. (Lewisham, E.)
Thomas, John R. (Dover)


Herbison, Miss M.
Mort, D. L.
Thorneycroft, Harry (Clayton)


Hewitson, Capt. M.
Moyle, A.
Thurtle, Ernest


Hobson, C. R.
Neal, H. (Clay Cross)
Tiffany, S.


Holman, P.
Nichol, Mrs. M. E. (Bradford, N.)
Timmons, J.


Holmes, H. E. (Hemsworth)
Nicholls, H. R. (Strafford)
Titterington, M. F.


Horabin, T. L.
O'Brien, T.
Tolley, L.


Hoy, J.
Oldfield, W. H.
Tomlinson, Rt. Hon. G.


Hubbard, T.
Oliver, G. H.
Ungoed-Thomas, L.


Hughes, Hector (Aberdeen, N.)
Orbach, M.
Vernon, Maj. W. F.


Hughes, H. D. (W'lverh'pton, W.)
Paget, R. T.
Viant, S. P.


Hutchinson, H. L. (Rusholme)
Paling, Rt. Hon. Wilfred (Wentworth)
Wadsworth, G.


Hynd, H. (Hackney, C.)
Paling, Will T. (Dewsbury)
Walker, G. H.


Irvine, A. J. (Liverpool)
Palmer, A. M. F.
Warbey, W. N.


Irving, W. J. (Tottenham, N.)
Parker, J.
Watkins, T. E.


Isaacs, Rt. Hon. G. A.
Parkin, B. T.
Wells, W. T. (Walsall)


Janner, B.
Paton, Mrs. F. (Rushcliffe)
West, D. G.


Jay, D. P. T.
Paton, J. (Norwich)
Westwood, Rt. Hon. J.


Jeger, Dr. S. W. (St Pancras, S.E.)
Pearson, A.
Wheatley, Rt. Hn. John (Edinb'gh, E.)


Jenkins, R. H.
Peart, T. F.
White, H. (Derbyshire, N.E.)


Johnston, Douglas
Perrin, W.
Whiteley, Rt. Hon. W.


Jones, Rt. Hon. A. C. (Shipley)
Popplewell, E.
Wigg, George


Jones, D. T. (Hartlepools)
Porter, E. (Warrington)
Wilcock, Group-Capt C. A. B.


Jones, Elwyn (Plaistow)
Proctor, W. T.
Wilkes, L.


Jones, J. H. (Bolton)
Pryde, D. J.
Wilkins, W. A.


Jones, P. Asterley (Hitchin)
Pursey, Comdr. H.
Willey, F. T. (Sunderland)


Keenan, W.
Ranger, J.
Williams, J. L. (Kelvingrove)


Kenyon, C.
Rankin, J.
Williams, R. W. (Wigan)


Key, Rt. Hon. C. W.
Rees-Williams, D. R.
Williams, Rt. Hon. T. (Don Valley)


King, E. M.
Reeves, J.
Williams, W. R. (Heston)


Kinghorn, Sqn.-Ldr. E.
Reid, T. (Swindon)
Willis, E.


Kinley, J.
Rhodes, H.
Wills, Mrs. E. A.


Kirby, B. V.
Ridealgh, Mrs. M.
Wilson, Rt. Hon. J. H.


Lawson, Rt. Hon. J. J.
Robens, A.
Wise, Major F. J.


Lee, F. (Hulme)
Roberts, Goronwy (Caernarvonshire)
Woods, G. S.


Lee, Miss J. (Cannock)
Rogers, G. H. R.
Wyatt, W.


Leonard, W.
Ross, William (Kilmarnock)
Young, Sir R. (Newton)


Leslie, J. R.
Royle, C.
Younger, Hon. Kenneth


Lever, N. H.
Sargood, R.



Levy, B. W.
Segal, Dr. S.
TELLERS FOR THE AYES:


Lewis, J. (Bolton)
Shackleton, E. A. A.
Mr. Snow and Mr. G. Wallace




NOES.


Agnew, Cmdr. P. G.
Baxter, A. B.
Bowen, R.


Aitken, Hon. Max
Beamish, Maj. T. V. H.
Bower, N.


Anderson, Rt. Hn. Sir J. (Scot Univ.)
Beechman, N. A.
Boyd-Carpenter, J. A.


Assheton, Rt. Hon. R.
Bennett, Sir P.
Bracken, Rt. Hon. Brendan


Astor, Hon. M.
Birch, Nigel
Braithwaite, Lt.-Comdr. J. G.


Baldwin, A. E.
Boles, Lt.-Col D. C. (Wells)
Bromley-Davenport, Lt.-Col. W.


Barlow, Sir J.
Bossom, A. C.
Butcher, H. W.







Butler, Rt. Hn. R. A. (S'ffr'n W'ld'n)
Hurd, A.
Pitman, I. J.


Byers, Frank
Hutchison, Lt.-Cm. Clark (E'b'rgh W.)
Ponsonby, Col. C. E.


Carson, E.
Hutchison, Col. J. R. (Glasgow, C.)
Poole, O. B. S. (Oswestry)


Challen, C.
Jarvis, Sir J.
Prescott, Stanley


Channon, H.
Jeffreys, General Sir G.
Price, M. Philips


Churchill, Rt. Hon. W. S.
Jennings, R.
Price-White, Lt.-Col. D.


Clarke, Col. R. S.
Joynson-Hicks, Hon. L. W.
Prior-Palmer, Brig. O.


Clifton-Brown, Lt.-Col. G.
Keeling, E. H.
Raikes, H. V.


Conant, Maj. R. J. E.
Kendall, W. D.
Ramsay, Maj. S.


Cooper-Key, E. M.
Kerr, Sir J. Graham
Rayner, Brig. R.


Corbett, Lieut.-Col. U. (Ludlow)
Kingsmill, Lt.-Col. W. H.
Reed, Sir S. (Aylesbury)


Crookshank, Capt. Rt. Hon. H. F. C.
Lambert, Hon. G.
Reid, Rt. Hon. J. S. C. (Hillhead)


Crosthwaite-Eyre, Col. O. E.
Lancaster, Col. C. G.
Renton, D.


Crowder, Capt. John E.
Langford-Holt, J.
Roberts, Emrys (Morioneth)


Cuthbert, W. N.
Law, Rt. Hon. R. K.
Roberts, H. (Handsworth)


Daggar, G.
Legge-Bourke, Maj. E. A. H.
Roberts, P. G. (Ecclesall)


Darling, Sir W. Y.
Lennox-Boyd, A. T.
Roberts, W. (Cumberland, N.)


Davidson, Viscountess
Lindsay, M. (Solihull)
Robertson, Sir D. (Streatham)


De la Bère, R.
Linstead, H. N.
Robinson, Roland


Digby, S. W.
Lipson, D. L.
Ropner, Col. L.


Dodds-Parker, A. D.
Lloyd, Maj. Guy (Renfrew, E.)
Ross, Sir R. D. (Londonderry)


Donner, P. W.
Lloyd, Selwyn (Wirral)
Sanderson, Sir F.


Dower, E. L. G. (Caithness)
Low, A. R. W.
Savory, Prof. D. L.


Drayson, G. B.
Lucas, Major Sir J.
Sharp, Granville


Dugdale, Maj. Sir T. (Richmond)
Lucas-Tooth, Sir H.
Shepherd, S. (Newark)


Duncan, Rt. Hn. Sir A. (City of Lond.)
Lyttelton, Rt. Hon. O.
Shepherd, W. S. (Bucklow)


Duthie, W. S.
MacAndrew, Col. Sir C.
Smiles, Lt.-Cot. Sir W.


Eccles, D. M.
McCallum, Maj. D.
Smith, E. P. (Ashford)


Elliot, Lieut.-Col. Rt. Hon. Walter
Macdonald, Sir P. (I. of Wight)
Smithers, Sir W.


Erroll, F. J.
McFarlane, C. S.
Snadden, W. M.


Fletcher, W. (Bury)
Mackeson, Brig. H. R.
Spearman, A. C. M.


Foster, J. G. (Northwich)
McKie, J. H. (Galloway)
Spence, H. R.


Fox, Sir G.
Maclay, Hon. J. S.
Stanley, Rt. Hon. O.


Fraser H. C. P. (Stone)
Maclean, F. H. R. (Lancaster)
Stewart, J. Henderson (Fife E.)


Fraser, Sir I. (Lonsdale)
MacLeod., J.
Stoddart-Scott, Col. M.


Fyfe, Rt. Hon. Sir D. P. M.
Macmillan, Rt. Hon. Harold (Bromley)
Strauss, Henry (English Universities)


Gage, C.
Macpherson, N. (Dumfries)
Stuart, Rt. Hon. J. (Moray)


Galbraith, Cmdr. T. D.
Maitland, Comdr. J. W.
Studholme, H. G.


Gammans, L. D.
Manningham-Buller, R. E.
Sutcliffe, H.


Gates, Maj. E. E.
Marlowe, A. A. H.
Taylor, C. S. (Eastbourne)


George, Maj. Rt. Hn. G. Lloyd (P'ke)
Marples, A. E.
Thomas, J. P. L. (Hereford)


Glyn, Sir R.
Marsden, Capt. A.
Thorneycroft, G. E. P. (Monmouth)


Gomme-Duncan, Col. A.
Marshall, D. (Bodmin)
Thornton-Kemsley, C. N.


Grant, Lady
Marshall, S. H. (Sutton)
Thorp, Brigadier R. A. F.


Gridley, Sir A.
Maude, J. C.
Touche, G. C.


Griffiths, D. (Rother Valley)
Mellor, Sir J.
Turner-Samuels, M.


Grimston, R. V.
Molson, A H. E.
Usborne, Henry


Hannon, Sir P. (Moseley)
Moore, Lt.-Col. Sir T.
Vane, W. M. F.


Harden, J. R. E.
Morris, Hopkin (Carmarthen)
Wakefield, Sir W. W.


Hare, Hon. J. H. (Woodbridge)
Morrison, Maj. J. G. (Salisbury)
Ward, Hon. G. R.


Harris, F. W. (Croydon, N.)
Morrison, Rt. Hon. W. S. (Cir'cester)
Watt, Sir G. S. Harvie


Harvey, Air-Comdre. A. V.
Mott-Radclyffe, C. E.
Wheatley, Colonel M. J. (Dorset, E.)


Houghton, S. G.
Neven-Spence, Sir B.
White, Sir D. (Fareham)


Headlam, Lieut.-Col. Rt. Hon. Sir C.
Nicholson, G.
White, J. B. (Canterbury)


Henderson, John (Cathcart)
Nield, B. (Chester)
Williams, C. (Torquay)


Herbert, Sir A. P.
Noble, Comdr. A. H. P.
Williams, Gerald (Tonbridge)


Hinchingbrooke, Viscount
Nutting, Anthony
Willoughby de Eresby, Lord


Hogg, Hon. Q.
Odey, G. W.
Winterton, Rt. Hon. Earl


Hollis, M. C.
O'Neill, Rt. Hon. Sir H.
York, C.


Holmes, Sir J. Stanley (Harwich)
Orr-Ewing, I L.
Young, Sir A S. L. (Partick)


Hope, Lord J.
Osborne, C.



Howard, Hon. A.
Peaka, Rt. Hon. O.
TELLERS FOR THE NOES:


Hudson, Rt. Hon. R. S. (Southport)
Peto, Brig. C. H. M.
Mr. Buchan-Hepburn and


Hulbert, Wing-Cdr. N. J.
Pickthorn, K.
Mr. Drewe.

Further Amendments made to the words so restored to the Bill: In page 2, line 3, at end, insert:
(7) This section shall apply to Scotland, subject to the following modifications—

(a) for any reference to the Prison Acts, 1865 to 1898, there shall be substituted a reference to the Prison (Scotland) Acts, 1860 to 1904, and for any reference to section fifty-three of the Children and Young Persons Act, 1933, there shall be substituted a reference to section fifty-seven of the Children and Young Persons (Scotland) Act, 1937;

(b) any reference to imprisonment for life shall be construed as a reference to penal servitude for life;
(c) for the purpose of establishing that a person charged with murder has been convicted of murder committed on a previous occasion section sixty-six of the Criminal Procedure (Scotland) Act, 1887, shall apply and such conviction shall be deemed to have been found by the jury if it is admitted by the accused or is held to apply to him in pursuance of that section or is proved in accordance with the provisions thereof;
(d) subsections (3) and (5) shall be omitted and the following subsection shall be inserted after subsection (2):



'(3) During the continuance in force of this section, sections two and three of the Criminal Law (Scotland) Act, 1829 (which make punishable by death certain crimes of violence against His Majesty's subjects), shall be construed as requiring the court to sentence any person convicted of any of the crimes therein set forth to penal servitude for life.'

In page 2, line 19, to leave out Subsection (4).—[Mr. Ede.]

Consequential Amendment made: In page 67, line 1, at end, insert the following new Schedule:

SCHEDULE

OFFENCES INVOLVING DEATH PENALTY FOR MURDER

PART I

Offences under law of England

1. An offence under section twenty-three of the Larceny Act, 1916 (which relates to robbery).
2. An offence under section twenty-five, twenty-six or twenty-seven of the Larceny Act, 1916 (which relates to burglary and housebreaking).
3. An offence under section twenty of the Offences against the Person Act, 1861 (which relates to wounding or inflicting grievous bodily harm), committed by three or more persons acting in concert.
4. An offence under section twenty-eight, twenty-nine or thirty of the Offences against the Person Act, 1861, or section two of the Explosive Substances Act, 1883 (which relate to crimes committed by means of explosives and other destructive substances).
5 An offence under section forty-eight of fifty-two of the Offences against the Person Act, 1861 (which relate to rape and indecent assaults on females).
6. An offence under section sixty-one or sixty-two of the Offences against the Person Act, 1861 (which relate to sodomy and indecent assaults on males).

PART II

Offences under law of Scotland

1. Robbery.
2. Theft by housebreaking or housebreaking with intent to steal, or theft by opening lock-fast places or opening lock-fast places with intent to steal.
3. An assault with intent to do grievous bodily harm by three or more persons acting together, or an assault involving the throwing at or applying to another of a corrosive acid or other dangerous substance calculated to burn or injure him.
4 An offence under section two of the Explosive Substances Act, 1883 (which relates to crimes committed by means of explosives)
5. Rape, sodomy or indecent assault

—[Mr. Ede.]

10.45 p.m.

CLAUSE 3.—(Abolition of power to pass a sentence of whipping.)

Lords Amendment: In page 3, line 4, at end, insert:
with a cat o'nine tails.

Mr. Ede: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
It is true that we have had two three-line Whips today, and, therefore, perhaps it is somewhat refreshing to find that someone can think of an even worse punishment than that. I am bound to say that I am surprised to find that this Amendment has been made by another place. The history associated with this Clause in this House is very interesting. On the occasion of the Bill of 1938 Sir Samuel Hoare, as he then was, included a Clause abolishing whipping in the English judicial system.

Lieut.-Colonel Sir Thomas Moore: But he did leave it to a free vote of the House.

Mr. Ede: Really the hon. and gallant Gentleman might allow me to proceed. I try to be as courteous as I can to hon. Members in all parts of the House and to give way where it is necessary.
When the matter was discussed in Committee upstairs in 1938 the Clause was retained in the Bill. Curiously enough, although a majority of Conservative Members voted against it, a solid vote of Labour Members secured its retention in the Bill on the Committee stage. The matter never came before the House on Report stage because the Bill had to be dropped owing to the outbreak of the war. On this occasion upstairs an Amendment was moved by the hon. and learned Gentleman the Member for Daventry (Mr. Manningham-Buller) and was discussed at some length. A speech was made by the noble Lord the Member for Horsham (Earl Winterton) in which he supported the Clause as drafted, and, in fact, as a Member of the Government in 1938 he had voted on that occasion in favour of the abolition of corporal punishment. The hon. and learned Gentleman the Member for Daventry withdrew his Amendment and the Clause was added to the Bill without a Division. No Amendment on the subject was called on the Report stage down here so that the Clause abolishing


whipping went to another place without a vote having been recorded against it by any Member of this House.
The Government feel that this is a matter which has twice been before a Committee upstairs—first it was carried by a majority, and on this occasion it was carried unanimously. The Departmental Committee on Flogging made a report which was the basis of the 1938 Clause and is the basis of the Clause that we inserted in the Bill. They found, after the most careful investigation, that there was no ground for believing that flogging, whether by the cat o'nine tails or by birching, was a deterrent. There is plenty of evidence that it has certainly no reformative effect.
In these circumstances, the Government included the Clause in the Bill and they believe it should remain in the Bill.

Sir T. Moore: As the Home Secretary has referred to it, you, Sir, may recall that on the Report stage of the Bill there was an Amendment on the Paper in my name supported by the hon. and gallant Member for Chertsey (Captain Marsden). You, unfortunately, felt unable to call it as we had not carried the matter to a Division on the Committee stage. Failing the opportunity of dealing with the matter on the Report stage, I, and some other hon. Members did refer to it on the Third Reading, and in the concluding sentence of my speech I expressed the hope that the more intelligent House to which the Bill was then proceeding, would rectify our error. I hope that has been fully justified since the other House, on the advice of the Lord Chief Justice, passed a series of Amendments which have excluded flogging from the scope of the Bill, but which have retained birching.
Now I come to the irreconcilable attitude of the Government, which is contrary to both justice and common sense, in refusing to accept the experienced advice of this most distinguished Judge. Therefore, I feel, as many of my hon. Friends do, that we must try to put a few more arguments and not repeat the same arguments in favour of the Lords' Amendments being retained.
I am not whole-heartedly in agreement even with the abolition of flogging since, unhappily, as the House knows, and we have been reminded on many occasions, there are still many people—estimated

at about 50,000—who are undeterred apparently by any other form of punishment. But, I, personally, am happy to accept their Lordships' Amendments for two reasons. One is because they are a compromise, and we as a race are supposed to be geniuses for compromise. Secondly, I was influenced by the argument of Lord Goddard that the ridicule with which he associated whipping could be, in his great experience, even more effective than the pain of flogging.
I ask this question—why have the Government been so stubborn on this question of corporal punishment? I am saying "Government" advisedly, and not hon. Members opposite who are supporting the Government; I will deal with them in a minute. If we judge by the speeches and the arguments of Government spokesmen, and if we again follow the argument used by the Home Secretary tonight, their decision is based on the findings of the Departmental Committee which, so far as my memory serves me, sat in 1931. Many changes have taken place in the last 17 years. At that time we had largely overcome the chaotic moral conditions which were the result of the first world war. Happily, we had not yet got to the second world war.
This second great convulsion has again upset the moral standards, the moral conduct, the moral outlook and the hopes of all the peoples engaged in it. But in that year, 1931, the situation was all in favour of an over-tolerant attitude towards crime. Yet despite this favourable atmosphere the Committee, contrary I think to what the right hon. Gentleman has said, made some admissions. For instance, they were satisfied that the fear of corporal punishment has a strong deterrent influence upon prisoners who might otherwise commit serious attacks on prison officers. That was one admission. Again, they admitted that:
We do not, of course, deny that it …
that is corporal punishment—
… has some deterrent effect.
What did this Committee do? They recommended that flogging should be retained for attacks by prisoners on prison wardens; but for that one offence only. I, like everyone else, have a great respect for the distinguished and honourable men who formed that Committee, but to my mind their recommendations just do not make sense. A gangster, a thug, a sadistic brute, of whom there are known


to be nearly 20,000 at large today who are homeless, lawless and possibly hopeless, can attack and rape an innocent young girl or even a child. They can bash in the head of an innocent old lady for the sake of a few shillings; they can mutilate an already helpless cripple, all for the sake of a little gain. What did that Committee recommend to deal with these brutes? They recommended a longer sentence of penal servitude which is precisely that form of punishment which is so disliked and condemned by practically all our most experienced judges. But, again—and I come to my opinion of this one nonsensical exception—we put the criminal into prison, we subject him to a certain amount of supervision, discipline and restraint. In those circumstances, let him lay a hand on a prison warden, who is presumably a tough, lusty and capable man, and then this deterrent, which is not a deterrent against attacks on the weak and helpless outside prison, is suddenly applied in the form of flogging. I ask hon. Members to believe that I do not say anything against these wardens. They perform a most difficult and distasteful task with patience, sympathy and courage, but let the prisoner put one hand on one of them and then a deterrent is applied in the form of flogging. Apparently that is the only time when these brutes are allowed to feel the pain that they so wantonly inflicted outside on those unable to resist. To my mind, this is illogical nonsense.
I come to those hon. Gentlemen opposite, those well meaning sentimentalists, who support their Government in this monstrous policy. Why do they support the abolition? They support it for no apparent reason except that their sensitive feelings are aggrieved or even outraged at the thought of suffering. But, oddly enough, this sensitivity is retained only for the criminal—

Mrs. Florence Paton: Nonsense.

Sir T. Moore: Read the Bill. There is not one mention in the whole of this Criminal Justice Bill of the word "victim."

Mr. George Porter: Did not the hon. Gentleman move an Amendment to the Animals Bill because he disagreed with pain being inflicted upon animals?

Sir T. Moore: If the hon. Gentleman had a little more experience in this House, he would know that I moved an Amendment in 1938 to the original Criminal Justice Bill seeking to impose flogging on those guilty of cruelty to animals. I am afraid that his interruption means very little. However, this Criminal Justice Bill is indeed well-termed: justice and more for the criminal, but no mention throughout of the word "victim." Indeed, it is a cynical commentary on the use of the word "justice."

Mr. Paget: Is the hon. and gallant Member proposing that the victim should be flogged, too, or what?

11.0 p.m.

Sir T. Moore: The victim has already suffered from the thugs whom I would seek to flog. Well-meaning and quite honourable sentimentalists believe that the whip applied to a young person creates some sort of psychological condition which hampers or distorts moral and spiritual growth. I give every credit to the integrity of those who hold such views, but I believe with complete conviction and some experience that it is entirely fallacious. Indeed, in my opinion, it is the cruel and sarcastic tongue of the parent that pierces the iron of the child's conscience to a greater degree than the cane or birch, and is more likely to sear the character of that young person than any form of physical punishment.
After all, physical punishment is a temporary business. The result passes and no impression is left behind at all except the determination not to risk it again. Therefore, I would ask the House to be careful and avoid concentrating on these purely hypothetical cases which are presented by so many well-meaning reformers and muddled-minded psychiatrists. I am certain that it is generally held that it is the tongue that leaves the deepest wound and not the cane or birch. This is going to be my last word. [Interruption.] I seem to have got under the sensitive skins of the sentimentalists.

Mr. Deputy-Speaker (Mr. Hubert Beaumont): Persistent interruptions and noise make it difficult to hear and determine if the hon. and gallant Member is in Order.

Sir T. Moore: May I prove I am still in Order? I was going to mention that during


the last war the world suffered a lot. Cities were reduced to ashes, bodies tortured and mutilated, and in many cases some of us thought that only one thing survived and that was the spirit. There emerged too, something else out of this war, and that was the psychiatrist. Now we have got to the stage that the psychiatrist, in regard to crime, has really more power than the judge.

Mr. Shurmer: I should call and see one if I were the hon. and gallant Member.

Sir T. Moore: Perhaps the hon. Member has had some experience, I have not.

Mr. Shurmer: Oh, yes.

Sir T. Moore: That explains a lot. It clears up a lot of ideas I had in my mind. Psychiatrists are responsible for more than I attributed to them. Unfortunately, the psychiatrists have gained too much authority. Undoubtedly they did relieve, and still do relieve, a great deal of mental suffering, and they undoubtedly adjust spiritual disruption. As I have already said, however, they have too much authority. My view is that this is wrong, because it leads to misdirection of our whole attitude towards crime.
As a final word I would say: let us trust the judges; let us trust the courts; let us, as Lord Goddard pleaded in another place, allow the judges to retain this weapon in reserve if only for one purpose—to show the criminal that lust and greed and brutality do not pay.

Brigadier Rayner: I hope the House realises that if the Home Secretary has his way tonight, physical pain will disappear entirely from the category of legal punishments. Henceforward the criminal who brutally robs an old man or woman will merely be relegated to the most complete form of social security—a not overcrowded house, with a bedroom to himself, a doctor to look after him, and fair opportunities for adult education. Henceforward the young hooligan who tortures dogs and cats and his weaker brethren, and who cuts about and destroys public property will merely be sent off to some fairly comfortable clinic where some of the psychiatrists referred to by my hon. and gallant Friend the Member for Aye Burghs (Sir T. Moore) will try to find out where his sensitive little soul went wrong in his cradle days.
I agree with the Lord Chief Justice, and most of his colleagues, that at a time like this, when brutal crime is very prevalent, it is utterly wrong to do away with a punishment which might deter the brutal criminal. I agree with that great Scottish lawyer, Lord Salvesen, who died not long ago and who, in one of his last speeches, said he believed that the only two really effective punishments were either corporal or capital. I agree with those parents, teachers and magistrates who are very worried about the rising figures of juvenile delinquency, and who think that this is the wrong time to do away with the power to birch young boys under 15.
I do not believe that the public is behind the Home Secretary in this matter. On the only other occasion when I spoke on corporal punishment in this House, I think in 1938, I suggested that I had been well beaten in my time and that I rather hoped that my children would go through the same useful discipline. I had a very big fan mail. I received a letter from some Labour women's association suggesting that I had absorbed the habit of flagellation at some public school, and that my taste for sadism was nourished on my own experience, but generally speaking the letters I received, from every sort of person, were in favour of the views I had expressed. So it is today. If any hon. Member will tackle a railway carriage full of people and ask them if they are in favour of doing away with the birch at the present time, he will find there are three to one against. If any hon. Member mingles with the crowd coming out of an assize court where some man has been tried for a brutal offence against some young girl or old woman, the sort of remark he will hear will be, "Three years! I would give him 20, and take the skin off his back as well." I warn the House that it will be just as wrongly interpreting public opinion if it lets the Home Secretary have his way over this matter as it was on the first Vote on capital punishment—just as wrong.
As my hon. and gallant Friend the Member for Ayr Burghs has referred to psychiatrists, I should like to say a word about them, too, because they are people about whom I feel rather strongly. I consider that this Clause is the sort of soft legislation of which we have far too much. I consider that just as psychiatrists, when they were brought into the Army during the War, were pain and grief to the


commanding officer, to the M.O. and every decent chap in a unit, and a blessing in disguise to all the "lead-swingers," so also this Clause, if carried, will be pain and grief to all ordinary citizens, and a blessed relief to the malefactor. I consider this is soft legislation, and that there is much too much soft legislation today. It is the duty of this Government in these times, when there is every sort of danger waiting round the corner, to try to harden the country and not to soften it. In the years between now and the year 2000 it will be the tough countries that will get through. I do hope that many hon. Members on both sides of the House, particularly in view of what the public feel about this question, will go into the Lobby in favour of this Lords Amendment.

Colonel Gomme-Duncan: On a point of Order. May I ask your guidance, Mr. Deputy-Speaker? The Amendment with which we are dealing is the one relating to the cat o' nine tails, but I wonder if it would be in Order to discuss the subsequent Lords Amendments in page 3 down to the one in line 6, which mentions the Larceny Act?

Mr. Deputy-Speaker: If the House agrees, I think it is competent to discuss them all together, for they all seem to hang together!

Colonel Gomme-Duncan: I think that this is a much more serious matter than the House, perhaps, seems to think. I should like very briefly to say what I feel about it, in particular in connection with whipping, rather than in connection with the cat o' nine tails. I want to speak from my experience as inspector of prisons for Scotland, which was the post I held for a short time before the war. It gave me a very good insight into the outlook of the men of all ages in the prisons of Scotland—and I have no doubt that that outlook is precisely the same in England and Wales—with regard to this matter of corporal punishment. I spoke with a very large number of prisoners. It was part of my job to do so, and, anyway, I was interested in them as human beings, and I wanted to know what their reactions were to corporal punishment. In every case I found a very definite dislike of—not a physical dislike of, but a sort of grudge against—the cat o' nine tails.

That was general. As to the question of whipping with a cane or birch—whatever hon. Members like to call it: the one does not hurt more than the other, and I have tried both—there was a feeling amongst those people, who are, unfortunately, rather what one might call the dregs of society, a feeling of very definite dread of corporal punishment. I have no doubt in my own mind—and I have wrestled in my own mind with the subject—that corporal punishment is a very definite deterrent amongst a certain class of persons. Surely, the object of all criminal justice should be to act as a deterrent, so that society as a whole may be protected, without leaving out the reformatory attitude one should always take up. If whipping is accepted by the criminal class as a deterrent, that is a fact we cannot lightly overlook.

11.15 p.m.

The Lord Advocate (Mr. John Wheatley): The hon. and gallant Member will excuse my intervention. Is he aware that the last punishment by whipping of an adult in Scotland was in 1932, that the last whipping in prison under the prison rules was in 1934 and that the one prior to that was in 1926?

Colonel Gomme-Duncan: I am very grateful to the right hon. and learned Gentleman. I was aware of that. I am only saying what criminals in Scottish gaols thought about whipping.

Mr. Benson: The hon. and gallant Member referred to Scottish prisons. There is only one prison in Scotland in which whipping can be imposed for prison offences, and that is Peterhead.

Colonel Gomme-Duncan: I do wish the hon. Gentleman would bear with me. Perhaps I have not put it correctly. I am saying what criminals think about whipping. I am not saying where they have been whipped or when they were last whipped. I am talking about their attitude to whipping.

Mr. S. Silverman: rose—

Colonel Gomme-Duncan: I will give way to the hon. Member for Nelson and Colne (Mr. S. Silverman) if he has a contribution to make.

Mr. S. Silverman: If the hon. and gallant Gentleman's argument has no reference to places where whipping happened


or whether it had happened at all, it can only be of academic interest.

Colonel Gomme-Duncan: In the Criminal Justice Bill we are endeavouring to put the whole thing on the best possible basis in the interest of society as a whole. Surely, it is more than academic interest to know what these criminals with whom we are concerned think about whipping. I would think it more than academic, because it is the desire of all Members of this House to do the very best we can, not only for society, which we have to protect, but for the criminals who are concerned.

Mr. G. Porter: I thought the hon. and gallant Member was talking about the Scottish prisons.

Colonel Gomme-Duncan: The job of the Inspector of Prisons for Scotland, and I feel sure, for England, is to find out everything concerned with criminals so that he can do the best he can for them. Obviously, when flogging is under discussion—it was before the war and it is now—one wants to find out what the criminal's reactions are if one is to do the best for the criminals and for society. I cannot say that too emphatically. I beg the Home Secretary to say whether he will not consider that another place has not done wisely in leaving out the cat o'nine tails and retaining the punishment of whipping in certain specified cases. I hope I have made it clear from the point of view of one who is interested. I hope the House will consider this very seriously and not let the discussion degenerate into a matter of mere laughter.

Mr. Benson: I should not have intervened in this Debate had not the hon. and gallant Member quoted the Scottish view as evidence for the use of corporal punishment. It so happens that there is no more conclusive argument for the abolition of corporal punishment than the experience of Scotland. It lies in this. In England, there is practically only one crime for which an adult is flogged, and that is, robbery with violence. We have here two countries, one in which the "cat" has been used for 75 years for robbery, and one where it has not been used because it is illegal to use it. The "cat" is not a legal punishment there. What has been the course of the decline

in the figures for robbery during the last 75 years? There has been a decline in Scotland to about one-third of the decline in the English figures. In the country where there is no flogging, robbery has declined more rapidly than it has in England, where there is flogging, and where flogging has been consistently used. In view of this, what is the use of bringing in Scotland as evidence in favour of flogging?

Colonel Gomme-Duncan: I was not giving it as evidence of what Scotland does or ought to do, but of the reaction of criminals to the possibility of their being flogged.

Mr. Benson: Obviously, no criminal wants to be flogged. On the other hand, no criminal wants to be imprisoned. The question with which the Departmental Committee was faced was, which is the more effective deterrent, or is there any evidence to show that corporal punishment is more effective than imprisonment? The Committee analysed the statistics covering the last 75 years, and it came to the conclusion that it could not find one shred of evidence that corporal punishment is more effective than imprisonment as a deterrent.

Brigadier Rayner: Is it not a well known fact that the tawse is used in Scottish schools far more often than the cane is used in English schools? They catch them young and deter them early.

Mr. Maude: I do not think it would be right, as I am able to be here tonight, to allow this Debate to go by without giving my personal knowledge of these matters. I do not pretend to any more knowledge on this subject than anyone else who has had the same amount of experience; but I claim that it would be quite wrong not to give my views. My experience is that the criminal—I am not talking about the man who is not in the true sense of the word a criminal, but of the man who has taken to the criminal way of life—is frightened of a beating. There is no doubt about that. I remember that when I was only 19, and I was Mr. Justice Avory's marshal, he told me that he thought it was a very cruel thing to send a man to long terms of penal servitude if, in fact, the same result could be obtained by way of deterrent through a beating and a short term of imprisonment. I believe that to be true.
I believe that this House often does not understand that this business of being locked up for years and years is very likely, as we are going now, to get worse. I can see quite clearly what will happen. It will be found that judges will say that they are no longer able to tell the public every now and then that they have the power to order whippings. Judges tell the public by way of warning that they have the power to order whippings to be imposed on any person who attempts to choke, suffocate, or strangle any other person or who, by any means calculated to choke, suffocate, or strangle, attempts to render any other person insensible, unconscious, or incapable of resistance, by way of committing a grave crime. We are no longer to be able to tell the public that we can order that persons be whipped by way of warning, and that people who rob not only old ladies, but children, and even men, both young and old will be subject to whipping. Nor shall we be able to tell the public that where two or more persons join together for the purpose of robbing, these persons may be whipped.
Surely, the argument so far must be abundantly clear. If the criminal is afraid of pain, then His Majesty's judges in the High Court are bound, as a result, to say, "You have taken away one of the powers we had, of which criminals are afraid." They will say that, and I give it to the House, as my experience, that these criminals are afraid of flogging. I do beg right hon. and hon. Gentlemen to believe me when I say that where a man is indicted for a crime which carries penal servitude or flogging as the penalty, counsel have it impressed on the court again and again that the one thing the man does not wish to have is a flogging. What the House will be doing if it removes this power, is not to remove the incidence in past years of many floggings. It will be taking away the power of flogging and that is a reasonable power to have at one's elbow. Indeed I would say that for the three classes of offences I have mentioned, there is no hon. Member here tonight who would say that the man who received such punishment did not richly deserve it. There is no question of injustice about this. It has to be remembered that if a judge is thought to have been really harsh, and has "overdone it a bit," the Home Secretary has the

power to prevent such a sentence taking place. We are coming to a position where persons of a certain type are thinking of prisons, not as places to which they are afraid to go, but as places where the hardened criminal knows he will be well fed, well housed, given lectures, and will live in a room with another man so that the solitary confinement, as in the prison at Exeter, has gone. These are the facts. I am not saying that we want to put people into dungeons with rats, but those who have to try to apply the law which this House give to the judges think it would be wise if the prisons to which persons are sent were thought to be unpleasant.
I say, quite sincerely—just as sincerely as the Attorney-General made an assertion earlier in today's Debate—that those persons who come before me and go to Exeter gaol no longer fear as they should. That is a very grave matter indeed; it is the position which we have reached. The culminating point of absurdity was reached yesterday when two men who were sent to me for sentence were driven to the court in a Rolls Royce car. It is really fantastic. In those offences where the person is under 16, one knows perfectly well, if one attends in the juvenile courts, that the thing has become farcical. The old idea appears to be going. I do not know to what extent it goes, because we are living on a dying tradition of a particular form of morality. Nor do I know what are the multiple reasons for the increase in crime, but the thing I believe to be wrong is to vote away something of which the criminal is afraid.

11.30 p.m.

Captain Marsden: I support the Lords Amendment in this matter. I think that the hon. and learned Member for Exeter (Mr. Maude) has tried to put flogging before the House in serious perspective, for it has previously been treated with some levity. We have just heard the hon. and learned Gentleman, with his great experience as the Recorder of Plymouth. I am sure no one could think otherwise than that here was evidence which we must really consider sensibly before voting on this issue tonight. I am afraid that only too many have come here with preconceived ideas. Perhaps they have changed them. There are many on the benches opposite who, three months ago, voted for abolition, and voted tonight for its retention, so I am afraid


their views are not as solid as they might be. On this question the Lord Chief Justice, Lord Goddard, gave his own evidence in another place. He wants to abolish the "cat." That is not under consideration. We are all agreed about that, although the hon. Member for Chesterfield (Mr. Benson) says he would sooner have the "cat" than the birch.

Mr. Benson: I must ask the hon. and gallant Gentleman to withdraw that. I said nothing of the kind.

Captain Marsden: From my own recollection the hon. Member said something very like that. His chief objection to the birch was not the pain it inflicted, but its indignity.

Mr. Benson: I must again ask the hon. and gallant Member to withdraw. When a similar Clause was moved in Committee I pointed out that the Departmental Committee itself had considered this matter and had, after considerable investigation, come to the conclusion that so far as the pain involved was concerned, there was very little or no difference between the "cat" or the birch. That was my only point.

Captain Marsden: It is certainly within my recollection that the hon. Gentleman preferred, on the whole, the "cat" to the birch. Apparently he did not mind which it was to be. We have also heard from the Home Secretary the whole history of the progress of this Bill. Naturally, it was correct, but he might have been a little more complete. In the 1938 Bill the Home Secretary, then Sir Samuel Hoare, was overwhelmed with advice from the back benches as to what the Opposition proposed to do, and he was about to leave it to a free vote.

Mr. Ede: Do the Tories do such things as that?

Captain Marsden: They certainly do. However, the war intervened, and it was not put to the vote of the whole House, but what influenced the House and the public at the time was the incident of the "Mayfair boys" assault and robbery case. Now the Home Secretary has told us that some of those boys, or young men, came back on further charges—but not charges of violence. That is the point. Some of those who got the "cat" certainly

came back on further charges, but not robbery and violence, which really proves the point that flogging of that description is a deterrent to violent crimes. I think it is the wish of the people generally that for certain crimes some form of corporal punishment should be retained.
May I put it in another way? It is the magistrates and judges who should have the power to convict. Take the case of the Navy. No "cat o'nine-tails" sentence has been imposed for over 70 years, but that is not a matter of Act of Parliament; it is merely provided for by the laws of the Admiralty, and they can reimpose it at any time. In the meantime birchings are still inflicted on boys of 18 and under by sentence of court-martial. The power is retained to inflict it. If I understood the hon. and learned Member for Exeter, that was his chief plea—that the power to inflict these punishments should be retained for certain offences.
I live in the country and one of the gravest fears, especially among women and old people in isolated areas, is that they should be the subject of savage attack. The last time I spoke on this matter in the House I quoted a case. We cannot pick up a paper without finding these cases. I picked up one yesterday. This was a case where the Recorder of London, Sir Gerald Dodson, sentenced three boys, one of whom was 15. The charges were rather bad. After escaping from an approved school they entered the house of an elderly gentleman in the middle of the night, and attacked him in his bedroom. They also entered the flat of an old lady and attacked her, causing her severe injuries. This is what the Recorder said to this boy of 15, and his two companions, who were a year or two older:
What you three lads are really afraid of is your own skins. People say that birching or flogging does not deter, but I notice that you lads are quite willing to plead guilty to an offence so long as it does not carry with it birching or flogging, so brave are you. You were willing to inflict injury upon a helpless woman, but were mighty careful of your own skins. What you deserve of all things is to be birched, and that I would order without any hesitation were it not that I have accepted the plea of robbery, not with violence.
Cases like this are coming up every day, in all parts of the country, and I can only say that in my view, as a layman, and with my experience, the only


way to stop them is by flogging and birching.

Mr. Hogg: I must apologise for detaining the House at this late hour upon this subject, but it is a subject upon which I find it impossible to pass a silent vote, as I should like to have done. May I say in my defence that this is a subject upon which I have tried to catch your eye, Sir, ever since 1938, and that this is the first occasion on which I have been successful, so I think I have some right to express my view.
I should like to begin by saying that this is a very difficult subject to talk sensibly about on either side. It is very easy to talk nonsense about corporal punishment, and also very easy to range very widely over a large number of subjects. My hon. Friend below the Gangway talked lightly about parents spanking their children, and of birchings and beatings in school, but quite different considerations apply to corporal punishment of that kind and to the corporal punishment we are talking about this evening.
In general, I agree with the view which is held by the hon. Member for Chesterfield (Mr. Benson), though I disagree with his conclusion. I agree that in the main flogging is not a very good deterrent. I think that is established by the facts and is in accordance with my experience. It is, of course, true that criminals are afraid of flogging, but it does not follow from that that it is a deterrent. Therefore, I start from the proposition that I do not like flogging. I do not think that, in general, it ought to be applied. The only question for me is whether it ought to be retained as an occasional power to be inflicted cautiously in a few cases by trained judges. My own view is that it should be retained—and in precisely those cases which the Lords have suggested. It is very easy to be over-dogmatic in either direction. I want to explain why I am convinced that the other place was right, with the exception that I was convinced by the Report of the Committee which reported against judicial birching of young persons. I think that is an undesirable practice, and that the reasons which were advanced against it were, on the whole, cogent.
The question we must consider is whether the use of the birch in a certain limited number of cases can ever be in the public interest? I myself should

agree that, despite the public revulsion with which such crimes are visited, it is quite inappropriate to whip either the ponce or the pimp. I have always thought that either of those unpleasant gentlemen should not, in fact, be subjected to corporal punishment. I consider that imprisonment for both is a more effective deterrent, and that there is no need for whipping in such cases. I regard corporal punishment as a necessary expedient only where other deterrents are likely to fail, and then it is not a very good expedient. I regard it as necessary because it is, in certain cases, the only expedient which it is open to us to inflict.
In particular, I have in mind the case of robbery with violence. Quite clearly, a man who sets out to rob has already overcome his reluctance to undergo the risk of prison, or has already overcome any deterrent effect which imprisonment or penal servitude can possibly have—

Mr. Benson: Or flogging.

Mr. Hogg: I will come to flogging in a moment. It is clear that such a person has overcome that reluctance. The next question is whether it is desirable—some people think not, but I think it is—to have, in addition to the normal deterrent of imprisonment, an additional deterrent in cases where violence is contemplated? My own conviction is that it is desirable to have that extra power to use in appropriate cases. The person who contem plates the use of violence is a person who can be deterred, although he is not always deterred by the fear of physical pain. It is worth while telling the thief, in plain language, that so long as he resorts to dishonesty alone the only thing he has to fear is imprisonment, but if he goes a step further and uses violence either to overcome his victim, or to effect his escape or to secure his prize, then the courts have it in their power to inflict an additional punishment.
I think it is impossible to say that some innocent people are not occasionally prevented from suffering severe physical injury by the knowledge in the mind of the criminal that such is the case. I believe that the House can rest assured that these punishments are not inflicted, by courts either with any relish or with any absence of consideration. The hon. and gallant Member for Chertsey (Captain. Marsden) spoke, rightly, in terms of great abhorrence of certain crimes which, he


said, deserved severe physical punishment. I do not think that the deserts of the crime come into the matter one way or the other. This is a question of whether we can save innocent people pain by inflicting this punishment.
11.45 p.m.
I should like to tell the House of a very serious case within my own experience, where corporal punishment was not inflicted, to indicate the view that the courts take—that it is not absolutely necessary to inflict it in some cases or, rather, that it would be more beneficial if the courts did not in spite of the revulsion that they feel. This is the case of a man who, in the early hours of the morning, went into a house in which lived a widow of 45 years of age, who was in bed. He half strangled her with a stocking, under the threat of a loaded revolver. Having trussed her like a chicken he raped her twice, stole £500 worth of clothes and jewellery and then went downstairs, the woman still being trussed up, and cooked himself a meal. He came back upstairs and raped her again. Finally, he drove off in her late husband's motor. That was obviously robbery with violence—

Mr. Scholefield Allen: Was he drunk?

Mr. Hogg: No he was not, nor was he insane. He was a small arms instructor in His Majesty's Forces. I mention the circumstances of that case, because it would be difficult to find a more brutal, savage or violent crime. He had a previous conviction, and in my innocence I thought he was a certainty for being flogged for more than one reason, because he had incurred the penalty in more than one provision, but the judge—and how wise he was—did not, in fact, inflict that penalty, because he came to the conclusion that whatever the sentence he had to impose it would be a long one and the deterrent effect of flogging would have passed long before the man was released. Indeed, the man had been flogged before, and flogging had not been a deterrent.
I believe that is a very good example of the way in which a judge of the High Court—whom many hon. Members opposite would consider to hold reactionary views, but whom I consider to be a humane judge—dealt with an appallingly difficult case,

which would certainly have made me lose my temper in my younger and more youthful, headstrong way. I cite it to show how cautious the courts are before they inflict this particular punishment. I am perfectly certain that if the Lords Amendment is defeated—as I expect it will be by the Government majority—a few, not many, but a few, innocent people will suffer savage attacks which would otherwise not take place.

Mr. Hale: I do not want to interrupt the hon. Gentleman to score a point, because I respect his views in this matter, for I have sufficient experience of them to know that they are sincerely held. But I put it to him seriously that the case quoted by him could more likely and more properly be quoted as an example of the fact that flogging can make a man so vicious against society that he becomes incurable because of the effects of flogging.

Mr. Hogg: I do not want to go into the long history of that particular case, but he was difficult to cure before any flogging had taken place. I was seeking to say that I think it is absurd to pretend that if we delete this Lords Amendment we are going down the road that leads to degeneracy, as was said by one of my hon. Friends. It is absurd to proclaim that the results will be very spectacular either way. I seriously and sincerely believe that a small number of innocent people will suffer if we abolish flogging altogether, and that a very small number of guilty people will suffer if we do not. As between those two alternatives, without any real passion such as some hon. Members have shown, I shall, with a perfectly good conscience, go into the Lobby against the Government.

The Under-Secretary of State for the Home Department (Mr. Younger): I want to make only a few observations, because this ground has been gone over so many times, and I am rather surprised to find tonight that the controversy is not as I had thought it to be, absolutely dead. There is a great body of past authority for the proposition that this type of penalty should go, but I do not want to go into any detail on that. I think sociological problems of this kind should be dealt with afresh on each occasion. Nevertheless, it is striking what a great consensus of opinion there has been on this issue. The hon. and gallant Member


for Ayr Burghs (Sir T. Moore) referred to the Report of the Departmental Committee. He spoke of it as in 1931, but it was only appointed in 1937 by, among others the right hon. and gallant Member for the Scottish Universities (Lieut.-Colonel Elliot), and reported in 1938. The Report was accepted by the Home Secretary when he put forward his Bill in 1938, and again by my right hon. Friend in 1948. Therefore, I think there is a strong presumption in favour of giving great weight to those opinions at this time.
The hon. and gallant Member for Ayr Burghs, and also the hon. and gallant Member for Totnes (Brigadier Rayner), both seem to think that the abolition of corporal punishment was the idea of what they called "woolly-minded psychiatrists." The hon. and gallant Member has clearly read the Report, and he will have found a most impressive quotation from the Report of the Commissioners on the Criminal Law over 100 years ago, and that was the first of many occasions on which an expert opinion was given that corporal punishment was not a useful form of penalty.

Brigadier Rayner: My hon. and gallant Friend tried to show that the Report was made completely unreal by the fact that corporal punishment was recommended as a deterrent in prisons. If it was a deterrent in prisons, surely it would be a deterrent anywhere else.

Mr. Younger: That is one of the points I am going to deal with. It is one of the potential points of attack on my argument; I am going to deal with it faithfully, but I do not want to take up the time of the House unduly. The Amendments we are dealing with now do make some attempt to rationalise the existing law on this subject, which is in a very anomalous state. It is proposed to abolish the "cat" while retaining the birch, to leave the law unchanged in respect of young offenders, and to limit the offences for which adults may be whipped—garrotting, living on immoral earnings, and robbery with violence. Admittedly that would make the present law a little tidier, but it does not in any way shift the weight of the argument against the imposition of this type of penalty in these as well as in other offences.
Garrotting is a very rare offence in this country, the imposition of whipping for

the offence of living on immoral earnings is practically obsolete, and there really only remains the problem of robbery with violence. We know that in Scotland, where conditions are not so very different, that is not an offence for which flogging can be imposed, and nobody in Scotland has recently suggested there is any need for it; nor is there any reason to suppose that the absence of the penalty puts Scotland at any disadvantage by comparison with England. In any case it is wrong to pick out offences for this penalty—and I think that is a mistake made by the hon. Member below the Gangway—on the ground of the moral indignation that is caused. That appeared to be the only reason why he was anxious that particular types of offences should be punished in this way. Even if that were the criterion, I certainly do not think the particular offences picked out in the Amendments now before us are an exhaustive list of the types of offence which might well come in under that type of argument.
I want to deal very shortly with the two problems, one the whipping of adults and the other the whipping of young offenders. So far as the adults are concerned I shall, I admit, take very much of my argument from the Report of 1938, which is, so far as I know, much the most comprehensive collection of facts and argument which is available to anybody on this problem. The authors of the Report tated that they regarded the whipping of adults as purely punitive; that not only was it not reformative, but that it would normally run contrary to other reformative influences under the penal system.
I would mention, in passing, that in this Bill we are trying to increase the reformative element in the penal system of this country, so that the provision to retain flogging might run even more contrary to the provisions of this Bill than it did to the previously existing penal system. On the crucial question of the deterrent influence, the Committee came down quite clearly on the side of those who say, not that it does not deter, but that as it is not much more of a deterrent than the other alternative penalties it should not be kept. The authors said there were no facts or figures which could prove deterrence, and even if there were admitted to be some element of deterrence—and most of us would agree that for certain


types of person, rather than certain types of offence, there may be some deterrent element—neverthless, that was very much outweighed by the brutalising effect, and that it turned many people into much more anti-social characters than they were before.
The hon. Member for Oxford (Mr. Hogg) suggested that this penalty ought to be retained if even a single crime—I am not using his exact words—might be prevented by the retention of the penalty. I do not think that that is the criterion on which we should seek to regulate our criminal code. I have no doubt that there may be some persons who might not be deterred by flogging or the death penalty, but would be deterred by some old-fashioned method of torture, or by disembowelling, hanging, drawing and quartering. But the effect in those few isolated cases is not suggested by anybody to be the criterion we should adopt in the formulation of the criminal code.
Even if there is some deterrent effect, the penalty is highly capricious in its operation as between one criminal and another. I think we should realise that, great as is the trouble which the courts take in trying to find out about the offenders before them, they have not, and cannot have, all that sort of detailed knowledge about a man's background, and his personality, and his likely reactions to the sentence, such as is acquired by those who really know him. I do not think it is practicable that the courts, when sentencing a man, should have the knowledge to enable them to distinguish between the large number of persons for whom flogging would be inappropriate and the very small number for whom it might be appropriate.
That point of the capricious effect is brought out in the Report. A prison governor had two people who had been flogged for rather similar offences. He asked one his reaction. He said, "The next time I shall not carry a gun." The other, asked his reaction, said, "Next time I shall use my gun." That shows, to say the very least, that the effect from the point of view of a deterrent is very varied and capricious.

Mr. Maude: Does the hon. Gentleman not believe that the whipping of a few individuals would put fear into the hearts of criminals and prevent criminals from

doing it at all; that it is not a deterrent to the man who has been caught, but frightens others from doing it?

Mr. Younger: The question the hon. and learned Member asks me is one about which there can be no positive proof, any more than there is about the death penalty. It is rather striking that the only two cases relevant to this topic quoted tonight—one by the hon. and learned Member for Oxford and the other, on the earlier Amendment by my right hon. and learned Friend the Attorney-General, were cases of persons who had been flogged, where it had no deterrent effect even upon them. While there is no proof that it is a deterrent, we cannot, of course, positively prove the contrary. I was asked about the retention of flogging in prison. I should like to read one sentence from the conclusions of the Cadogan Report. After saying that all forms of punishment have some deterring influence and, therefore, this penalty also had it, they say:
This alone would not be a sufficient ground for retaining the existing powers of corporal punishment.
Then, missing a sentence:
The final test is not whether corporal punishment has any deterrent effect, but whether there are offences or classes of offences for which long sentences of imprisonment or penal servitude are so ineffective as deterrents that it is necessary for the protection of society … to have the additional penalty of corporal punishment.
In prison, the deterrent effect of a further prison sentence on a man already serving a long prison sentence is negligible and it is precisely for that reason that the punishment of whipping is retained. That is carried to its logical conclusion in the Bill by the abolition of whipping in the case of persons in Borstal, because on them the additional punishment of a prison sentence can be imposed. It is retained in prison because it is the only other effective deterrent which can be applied.
On the question of the use of the cat o'nine-tails as against the birch, once again, after careful study, the Committee came to the conclusion that there was very little difference between the two instruments in point of the pain they inflict. So far as there is a difference, it is a difference in the melodramatic and morbid associations of one as against the other, and not any substantial difference. I submit that there is really very little gain


indeed by abolishing the cat o'nine-tails and retaining the birch. Finally, we are in an even smaller minority in retaining flogging than we were in retaining the death sentence among the western countries with what we would call civilised traditions. There are no other western countries, save those with laws based on our own law, and only some of them, who retain this penalty at all. In face

of the great weight of expert opinion over a number of years, the Government think it is high time this obsolete penalty was abolished.

Question put, "That this House doth disagree with the Lords in the said Amendment."

The House divided: Ayes, 232; Noes, 62.

Division. No. 264.]
AYES.
[12.5 a.m.


Acland, Sir Richard
Fletcher, E. G. M. (Islington, E.)
Moody, A. S.


Adams, Richard (Balham)
Foster, J. G. (Northwich)
Morley, R.


Adams, W. T. (Hammersmith South)
Fraser, T. (Hamilton)
Morris, P. (Swansea, W.)


Alexander, Rt. Hon. A. V.
Freeman, J. (Watford)
Moyle, A.


Allen, A. C. (Bosworth)
Gage, C.
Nally, W.


Allen, Scholefield (Crewe)
Ganley, Mrs. C. S.
Neal, H. (Clay Cross)


Attlee, Rt. Hon. C. R.
George, Lady M. Lloyd (Anglesey)
Nicholls, H. R. (Stratford)


Awbery, S. S.
Gibson, C. W.
Noel-Baker, Rt. Hon. P. J. (Derby)


Ayrton Gould, Mrs. B.
Gordon-Walker, P. C.
O'Brien, T.


Bacon, Miss A.
Granville, E. (Eye)
Oliver, G. H.


Baird, J.
Greenwood, A. W. J. (Heywood)
Orbach, M.


Barton, C.
Griffiths, D. (Rother Valley)
Paget, R. T.


Bechervaise, A. E.
Griffiths, Rt. Hon. J. (Llanelly)
Paling, Rt. Hon. Wilfred (Wentworth)


Benson, G.
Guy, W. H.
Paling, Will T. (Dewsbury)


Beswick, F.
Haire, John E. (Wycombe)
Palmer, A. M. F.


Bing, G. H. C.
Hale, Leslie
Pargiter, G. A.


Blackburn, A. R.
Hall, Rt. Hon. Glenvil
Parker, J.


Blenkinsop, A.
Hamilton, Lieut.-Col. R.
Paton, Mrs. F. (Rushcliffe)


Bottomley, A. G.
Hannan, W. (Maryhill)
Paton, J. (Norwich)


Bowles, F. G. (Nuneaton)
Hastings, Dr. Somerville
Peake, Rt. Hon. O.


Braddock, T. (Mitcham)
Herbison, Miss M.
Pearson, A.


Bramall, E. A.
Hewitson, Capt. M.
Peart, T. F.


Brook, D. (Halifax)
Hobson, C. R.
Perrins, W.


Brown, George (Belper)
Holman, P.
Popplewell, E.


Brown, T. J. (Ince)
Holmes, H. E. (Hemsworth)
Porter, G. (Leeds)


Burke, W. A.
Hoy, J.
Pritt, D. N.


Butler, H. W. (Hackney, S.)
Hudson, J. H. (Ealing, W.)
Proctor, W. T.


Castle, Mrs. B. A.
Hughes, Hector (Aberdeen, N.)
Randall, H. E.


Chamberlain, R. A.
Hughes, H. D. (W'lverh'pton, W.)
Ranger, J.


Champion, A. J.
Hutchinson, H. L. (Rusholme)
Rees-Williams, D. R.


Chetwynd, G. R.
Hynd, H. (Hackney, C.)
Reid, T. (Swindon)


Coldrick, W.
Irvine, A. J. (Liverpool)
Rhodes, H.


Collindridge, F.
Janner, B.
Roberts, Emrys (Merioneth)


Collins, V. J.
Jeger, G. (Winchester)
Roberts, Goronwy (Caernarvonshire)


Colman, Miss G. M.
Jeger, Dr. S. W. (St. Pancras, S.E.)
Roberts, W. (Cumberland, N.)


Comyns, Dr. L.
Jenkins, R. H.
Rogers, G. H. R.


Cooper, Wing-Comdr. G.
Johnston, Douglas
Ross, William (Kilmarnock)


Corbet, Mrs. F. K. (Camb'well, N.W.)
Jones, D. T. (Hartlepools)
Royle, C.


Corlett, Dr. J.
Jones, Elwyn (Plaistow)
Sargood, R.


Cove, W. G.
Jones, J. H. (Bolton)
Segal, Dr. S.


Crawley, A.
Jones, P. Asterley (Hitchin)
Shackleton, E. A. A.


Crossman, R. H. S.
Kenyon, C.
Sharp, Granville


Daggar, G.
Key, Rt. Hon. C. W.
Shawcross, C. N. (Widnes)


Dalton, Rt. Hon. H.
Kinghorn, Sqn.-Ldr. E.
Shawcross, Rt. Hn. Sir H. (St. Helens)


Davies, Edward (Burslem)
Lang, G.
Shurmer, P.


Davies, Ernest (Enfield)
Levy, B. W.
Silverman, J. (Erdington)


Davies, Harold (Leek)
Lewis, A. W. J. (Upton)
Silverman, S. S. (Nelson)


Davies, Haydn (St Pancras S.W.)
Lewis, J. (Bolton)
Simmons, C. J.


Davies, S. O. (Merthyr)
Lindgren, G. S.
Skeffington, A. M.


Deer, G.
Lipton, Lt.-Col. M.
Skeffington-Lodge, T. C.


de Freitas, Geoffrey
Longden, F.
Skinnard, F. W.


Delargy, H. J.
Lyne, A. W.
Smith, C. (Colchester)


Diamond, J.
McAllister, G.
Smith, H. N. (Nottingham, S.)


Dodds, N. N.
McGhee, H. G.
Snow, J. W.


Donovan, T.
Mack, J. D.
Solley, L. J.


Driberg, T. E. N.
Mackay, R. W. G. (Hull, N.W.)
Sorensen, R. W.


Dugdale, J. (W. Bromwich)
McLeavy, F.
Soskice, Rt. Hon. Sir Frank


Durbin, E. F. M.
Mallalieu, E. L. (Brigg)
Steele, T.


Dye, S.
Mallalieu, J. P. W. (Huddersfield)
Stewart, Michael (Fulham, E.)


Ede, Rt. Hon. J. C.
Manning, Mrs. L. (Epping)
Stokes, R. R.


Edwards, John (Blackburn)
Marquand, H. A.
Stubbs, A. E.


Edwards, W. J. (Whitechapel)
Mellish, R. J.
Swingler, S.


Elliot, Lieut.-Col. Rt. Hon. Walter
Messer, F.
Sylvester, G. O.


Evans, Albert (Islington, W.)
Middleton, Mrs. L.
Symonds, A. L.


Evans, John (Ogmore)
Mikardo, Ian
Taylor, R. J. (Morpeth)


Ewart, R.
Millington, Wing-Comdr. E. R.
Thomas, D. E. (Aberdare)


Fernyhough, E.
Mitchison, G. R.
Thomas, George (Cardiff)


Field, Capt. W. J.
Monslow, W.
Thomas, Ivor (Keighley)




Thomas, I. O. (Wrekin)
Wells, W. T. (Walsall)
Williams, W. R. (Heston)


Thomas, John R. (Dover)
West, D. G.
Wills, Mrs. E. A.


Tiffany, S.
Wheatley, Rt. Hn. John (Edinb'gh, E.)
Wilson, Rt. Hon. J. H.


Tomlinson, Rt. Hon. G.
White, H. (Derbyshire, N.E.)
Wise, Major F. J.


Usborne, Henry
Whiteley, Rt. Hon. W.
Yates, V. F.


Vernon, Maj. W. F.
Wigg, George
Younger, Hon. Kenneth


Walker, G. H.
Wilkes, L.



Wallace, G. D. (Chislehurst)
Willey, F. T. (Sunderland)
TELLERS FOR THE AYES:


Warbey, W. N.
Willey, O. G. (Cleveland)
Mr. Joseph Henderson and


Watkins, T. E.
Williams, J. L. (Kelvingrove)
Mr. Wilkins.


Weitzman, D.
Williams, R. W. (Wigan)





NOES.


Agnew, Cmdr. P. G.
Fletcher, W. (Bury)
Nicholson, G.


Astor, Hon. M.
Fox, Sir G.
Noble, Comdr. A. H. P.


Baxter, A. B.
Fraser H. C. P. (Stone)
Orr-Ewing, I. L.


Bennett, Sir P.
Fraser, Sir I. (Lonsdale)
Price-White, Lt.-Col D.


Boles, Lt.-Col. D. C. (Wells)
Grimston, R. V.
Ramsay, Maj. S.


Bossom, A. C.
Hare, Hon. J. H. (Woodbridge)
Rayner, Brig. R.


Bowen, R.
Harris, F. W. (Croydon, N.)
Robinson, Roland


Boyd-Carpenter, J. A.
Hogg, Hon. Q.
Ropner, Col. L.


Braithwaite, Lt.-Comdr. J. G.
Hulbert, Wing-Cdr. N. J.
Sanderson, Sir F.


Carson, E.
Hurd, A.
Stoddart-Scott, Col. M.


Chanson, H.
Joynson-Hicks, Hon. L. W.
Studholme, H. G.


Conant, Maj. R. J. E.
Keeling, E. H.
Thomas, J. P. L. (Hereford)


Corbett, Lieut.-Col. U. (Ludlow)
Linstead, H. N.
Vane, W. M. F.


Crosthwaite-Eyre, Col. O. E.
Low, A. R. W.
Wakefield, Sir W. W.


Darling, Sir W. Y.
Mackeson, Brig. H. R.
Ward, Hon. G. R.


Davidson, Viscountess
Maclean, F. H. R. (Lancaster)
Wheatley, Colonel M. J. (Dorset, E.)


Digby, S. W.
Maitland, Comdr. J. W.
White, J. B. (Canterbury)


Donner, P. W.
Manningham-Buller, R. E.
York, C.


Dower, E. L. G. (Caithness)
Marsden, Capt. A.



Drayson, G. B.
Marshall, S. H. (Sutton)
TELLERS FOR THE NOES:


Drewe, C.
Maude, J. C.
Lieut.-Colonel Sir Thomas Moore


Duthie, W. S.
Mellor, Sir J.
and Colonel Gomme-Duncan.


Question put, and agreed to.

Lords Amendment: In page 3, line 6, at end insert:
(2) No person shall be sentenced by a court to whipping unless he is a male person and—

(a) is under the age of sixteen, or
(b) has been convicted of an offence under one of the following enactments, that is to say, the Garrotters Act, 1863, section three or section seven of the Criminal Law Amendment Act 1912, or section twenty-three of the Larceny Act, 1916."

disagreed to.

12.15 a.m.

CLAUSE 7.—(Breach of requirement of probation order.)

Lords Amendment: In page 8, line 34, leave out from beginning to second "a" in line 36.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment and the Amendments to line 39 and 43 go together, and are drafting Amendments to clarify the Subsection.

CLAUSE 8.—(Absolute and conditional discharge.)

Lords Amendment: Page 11, line 19, at end, insert:
(7) If a person in whose case a probation order or an order or conditional discharge has been made by a court of summary jurisdiction is convicted by another court of summary jurisdiction of any offence committed during the probation period, or during the period of conditional discharge, that court may, with the consent of the court which made the order or, in the case of a probation order with the consent of that court, or of the supervising court, deal with him for the offence for which the order was made, in any manner in which the court could deal with him if it had just convicted him of that offence.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment was sponsored in another place by the National Association of Probation Officers. It is the intention here to avoid, where a court of summary jurisdiction sentences a probationer on a new offence, the necessity of bringing the offender up before the original court. The court may with the consent of the court or the supervising court which made the order, deal with the offence for which the order was made. This Amendment was accepted on behalf of the Government in another place.

CLAUSE 12.—(Supplementary provisions as to probation and discharge.)

Lords Amendment: In page 15, line 31, leave out Subsection (1).

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment and the next—in page 17, line 13, at end insert new Clause "A"—really come together. They replace Clause 12 (1). The provisions have the same general effect as the existing Clause but contain Amendments designed to improve the drafting and correct some verbal errors in the Clause as it stands.

Lords Amendment:

In line 13, at end insert new Clause "A"—(Effects of probation and discharge.)
(1) Subject as hereinafter provided, a conviction of an offence for which an order is made under this Part of this Act placing the offender on probation or discharging him absolutely or conditionally shall be deemed not to be a conviction for any purpose other than the purposes of the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this Act:
Provided that where an offender, being not less than seventeen years of age at the time of his conviction of an offence for which he is placed on probation or conditionally discharged as aforesaid, is subsequently sentenced under this Part of this Act for that offence, the provisions of this Subsection shall cease to apply to the conviction.
(2) Without prejudice to the foregoing provisions of this Section, the conviction of an offender who is placed on probation or discharged absolutely or conditionally as aforesaid shall in any event be disregarded for the purposes of any enactment which imposes any disqualification or disability upon convicted persons, or authorises or requires the imposition of any such disqualification or disability.
(3) The foregoing provisions of this Section shall not affect—

(a) any right of any such offender as aforesaid to appeal against his conviction, or to rely thereon in bar of any subsequent proceedings for the same offence;
(b) the revesting or restoration of any property in consequence of the conviction of any such offender; or
(c) the operation, in relation to any such offender, of any enactment in force at the commencement of this Act which is expressed to extend to persons dealt with under Subsection (1) of Section one of the Probation of Offenders Act, 1907, as well as to convicted persons.

CLAUSE 13.—(Power to fine on conviction of felony on indictment.)

Lords Amendment:

In page 17, line 15, leave out from beginning to end of line 17 and insert:
Any court by which an offender is convicted on indictment of felony (not being a felony the sentence for which is fixed by law) shall have power to fine the offender.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment,"
This Amendment and the two in line 18 come together. They are drafting Amendments with perhaps the exception of the Amendment inserting the words "or in addition to," and will allow a fine being imposed in addition to a sentence of imprisonment when a person is convicted on indictment of a felony.

CLAUSE 15.—(Incidental provisions as to fines and forfeited recognizances.)

Lords Amendment: In page 18, line 33, leave out from "1859" to "or" in line 34.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
The effect of this Amendment and the next one to line 36 is to get rid of the references to the Law Terms Act of 1830 which applies only to Wales and makes provision with regard to fines and forfeited recognizances before courts of assize in Wales. These provisions are different from those contained in Section 32 of the Queen's Remembrancer Act, 1859, relating to fines and forfeited recognizances before courts of assize in England. The differences give rise to anomalies, and it is desired to remove them.

CLAUSE 18.—(Detention in a detention centre.)

Lords Amendment: In page 21, line 23, after "shall" insert "(except as provided by paragraph (c) of this proviso)."

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment and the two to lines 25 and 33, have been made in response to representations by the Metropolitan juvenile court magistrates who feel that the term of three months which is the minimum for which a person may be sent to a detention centre is too long in the case of young offenders, particularly in the case of young offenders at school. The effect of these Amendments is to allow the court in the case of offenders of compulsory school age to send them to detention for one month, or any term between one and three months.

Lords Amendment: In page 22, insert new Clause "B"—(Attendance at an attendance centre.)
.—(1) Where a court of summary jurisdiction has power, or would but for section seventeen of this Act have power, to impose imprisonment on a person who is not less than twelve but under twenty-one years of age, or to deal with any such person under section seven of this Act for failure to comply with any of the requirements of a probation order, the court may, if it has been notified by the Secretary of State that an attendance centre is available for the reception from that court of persons of his class or description, order him to attend at such a centre, to be specified in the order, for such number of hours, not exceeding twelve in the aggregate, as may be so specified:
Provided that no such order shall be made in the case of a person who has been previously sentenced to imprisonment, Borstal training or detention in a detention centre, or has been ordered to be sent to an approved school.
(2) The times at which an offender is required to attend at an attendance centre by virtue of an order made under this section shall be such as to avoid interference, so far as practicable, with his school hours or working hours, and the first such time shall be specified in the order (being a time at which the centre is available for the attendance of the offender in accordance with the notification of the Secretary of State) and the subsequent times shall be fixed by the officer in charge of the centre, having regard to the offender's circumstances:
Provided that an offender shall not be required under this section to attend at an attendance centre on more than one occasion on any day, or for more than three hours on any occasion.
(3) The court by which an order has been made under subsection (1) of this section, or any justice acting for the petty sessional division or place for which that court acts, may, on the application of the offender or of the officer in charge of the attendance centre specified in the order—

(a) by order discharge the order; or
(b) by order vary the day or hour specified therein for the offender's first attendance at the centre;


and where the application is made by the said officer, the court or justice may deal with it without summoning the offender.
(4) Where an order is made under subsection (1) or subsection (3) of this section, the clerk to the justices shall deliver or send a copy of the order to the officer in charge of the attendance centre specified therein, and shall also deliver a copy to the offender or send a copy by registered post addressed to the offender's last or usual place of abode.
(5) Where a person has been ordered to attend at an attendance centre in default of the payment of any sum of money then—

(a) on payment of the whole sum to any person authoriised to receive it, the order shall cease to have effect;
(b) on the payment of a part of the said sum as aforesaid, the total number of hours for which the offender is required to attend at the centre shall be reduced proportionately that is to say by such number of complete hours as bears to the said total number the proportion most nearly approximating to, without exceeding, the proportion which the part paid bears to the said sum.

(6) Provision may be made by rules under section twenty-nine of the Summary Jurisdiction Act, 1879, as to the application of sums paid under the last foregoing subsection and for determining the persons authorised to receive such payments and the conditions under which such payments may be made.
(7) Where an order under subsection (1) of this section has been made and it appears on information to a justice acting for the petty sessional division or place for which the court which made the order acts that the person in whose case the order was made—

(a) has failed without reasonable excuse to attend at the centre in accordance with the order; or
(b) while attending at the centre has committed a breach of the rules made under section fifty of this Act which cannot be adequately dealt with under those rules;

the justice may issue a summons requiring the offender to appear at the place and time specified therein before a court of summary jurisdiction for the petty sessional division or place for which the justice acts, or may, if the information is in writing and on oath, issue a warrant for his arrest requiring him to be brought before such a court.
(8) If it is proved to the satisfaction of the court before which an offender appears or is brought under the last foregoing subsection that he has failed to attend as aforesaid, or has committed such a breach of rules as aforesaid, that court may revoke the order requiring his attendance at the attendance centre and deal with him in any manner in which he could have been dealt with by the court which made the order if the order had not been made.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Clause is to make provision on the lines of a proposal which was included in the 1938 Bill, but not included in this Bill,


for requiring young offenders to attend compulsory attendance centres. The main difference between the 1938 proposal and the present one is that the maximum number of hours for which an offender can be ordered to attend is in this provision 12 instead of 60, which was the very much heavier provision in the old Bill.
Under this Clause a court can send an offender for four periods of three hours each to attendance centres. The Clause also excludes from the category of offenders who may be sent to an attendance centre those who have been previously sentenced to imprisonment, Borstal training or detention in a detention centre or those ordered to be sent to approved schools. The purpose is to limit the possibilities of offenders contaminating each other which is, unfortunately, one of the results which the Government feared might ensure from this provision. There is a further change in the sense that failure to attend or a breach of the rules of attendance will mean, under Subsection (8) that the court will deal with the offender in any manner in which he could have been dealt with by the court if it had not made the original order.
When this Clause was accepted by the Government in another place it was made clear that if it were included in this Bill it could be only on the basis of experiment. There will undoubtedly be great difficulties in bringing this into operation on any considerable scale, but Lord Templewood, who was originally responsible for the proposal in 1938, suggested—and the Government thought it very reasonable—that it would be very useful to take power to make experiments. But there may be areas where we cannot find suitable premises and areas where we cannot find suitable staffs. Staffing is an important matter because if an attendance centre containing two or three people of this type were not properly supervised there would be a serious risk of contamination. But on the basis that this would be an experiment of a limited character the Government commend it to the House.

CLAUSE 19.—(Borstal training.)

Lords Amendment: In page 22, line 14, leave out from "offence" to end of line and insert "punishable with".

Mr. Younger: I beg to move "That this House doth agree with the Lords in the said Amendment." This Amendment and the next one are drafting.

Mr. Manningham-Buller: I rather fear that this Amendment is little more than drafting. Under Subsection (8) of Clause 19 of the Bill, as the Clause stands and as it left this House, a court of summary jurisdiction can commit a person of 16 or over for sentence by quarter sessions to Borstal, if one or two conditions are satisfied. Either that court can themselves sentence that person to imprisonment or, but for Clause 17, they would have the power to send him to prison. As the Clause stood in its original form there could be no doubt but that a court of summary jurisdiction, although they could not send a youth under 17 to prison by reason of Clause 17, could commit him for sentence by a court of quarter session. By the taking out of these words as proposed by this Amendment, and by the insertion of the words in line 31:
punishable on summary conviction with
it appears to follow, although it may not be intended, that the only cases in which a court of summary jurisdiction will be able in future to commit a man for sentence to quarter sessions will be those in which they themselves can sentence that person to imprisonment. Otherwise, that accused person is not before them on an offence punishable by them with imprisonment.
The effect of this Amendment would appear to be that a court of summary jurisdiction will not be able to commit for sentence a youth of the age of 16 but not more than 17 who, therefore, does not come within the power of a court of quarter session to send to prison. I hope that I am wrong in this, but it seems to me that that is a serious limitation consequent upon this Amendment which is really intended to be drafting. The same point seems to arise with other Amendments which are also considered to be of a drafting character. It appears to me that the effect of these Amendments will be to reduce and cut down the power of courts of summary jurisdiction. I am sure that that is not the intention. I hope that I have made the point clear and that my doubts may now be set at rest.

The Attorney-General: I will do my best. The effect of this Clause is not


really altered by the Lords Amendment. The matter is caught up again by one of the subsequent Amendments in page 65, line 45. That proposes to leave out from the word "offence" to the word "shall" and to insert:
punishable with imprisonment shall be construed, in relation to any offender, without regard to any prohibition or restriction imposed by or under this Act upon the imprisonment of offenders of his age. …

Question put, and agreed to,

Lords Amendment: In page 23, line 9, leave out "practicable" and insert "available."

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This and the next three Amendments in lines 9, 12 and 14 are drafting Amendments.

Mr. Manningham-Buller: I should like to ask what is the significance of changing the word "practicable" which is the word which appears in all the old Acts, to the word "available." It must have some significance.

Mr. Younger: It is merely a matter of drafting. I am afraid I cannot say what is the difference. I suppose that there is some argument as to what is practicable. It is not the same as the word "possible." There might be some argument about that.

12.30 a.m.

Mr. Manningham-Buller: It the hon. Gentleman looks at the old Acts dealing with appeals to quarter sessions he will find that the word normally used is "practicable," but here the word is "available" and that is why I am asking the question.

Mr. Younger: I am advised it was merely put in because it did not appear to make any great difference and it was more acceptable to their Lordships in another place.

Lords Amendment: In page 23, line 18, at end, insert:
(b) the Poor Prisoners Defence Act, 1930, shall apply as if the offender were committed for trial for an indictable offence, subject to the modifications that in subsection (2) of section one the words 'after reading the depositions' and in subsection (2) of section three 'and the costs of a copy of the depositions' shall be omitted;

(c) the Costs in Criminal Cases Act, 1908, shall apply in relation to the proceedings before the appeal committee or court of quarter sessions as it applies in relation to the prosecution of an indictable offence before a court of quarter sessions;
(d) if the appeal committee or court of quarter sessions passes a sentence of Borstal training, the offender may appeal against the sentence to the Court of Criminal Appeal as if he had been convicted on indictment, and the provisions of the Criminal Appeal Act, 1907, shall apply accordingly;
(6) References to a court of quarter sessions or a court in any enactment as applied by the last foregoing subsection, or in any other enactment relating to persons dealt with by quarter sessions (including any such enactment contained in this Act) shall be construed as including references to an appeal committee of quarter sessions by whom an offender is dealt with under that subsection.

Mr. Younger: I beg to move "That this House doth agree with the Lords in the said Amendment."
This Amendment inserts what are at present Subsections 9, 10 and 11 in a more appropriate place.

Lords Amendment: In page 23, line 19, leave out from "passed" to end of line 20 and insert, "under this section."

Mr. Younger: I beg to move "That this House doth agree with the Lords in the said Amendment."
This Amendment together with those to lines 21, 29 and 37 are drafting with the exception possibly of that to line 29, which substitutes four weeks for three as the period of remand. This was inserted in another place as a compromise with a longer period than that.

Mr. Manningham-Buller: The Amendment to line 29, to which the Under-Secretary has cursorily referred, in my opinion makes a somewhat significant alteration in the law. This Amendment, which I note is similar to Amendments in a later Clause of the Bill, has the effect of extending the time which a person can be kept in custody without being brought before a court to four weeks. Before the war a man charged before a court of summary jurisdiction on an indictable offence could be remanded for a period not exceeding eight days, which meant that the courts kept a very close control over the individuals who were awaiting trial in custody. There might also have been two or three remands a week, in which case probably some pressure came


to be put upon the prosecution to get their case ready.
At the beginning of the war the period of not more than eight days was extended by the Administration of Justice (Emergency Powers) Act, 1939, to a period of three weeks. One could understand that in wartime, and three weeks was the period mentioned in this Bill when it left this House. Three weeks in my view was the maximum which could be allowed to pass between the time when a man was brought before the court and remanded and brought back to the court again. I am confirmed in my view that three weeks was quite long enough by the fact that I understand the Home Office have stated it to be their view that three weeks is ample. I want to know why we are now asked to agree to the proposal that a man can be remanded in custody for a month before coming back before the court. When he comes back after a month has elapsed he may be remanded for another month. That period is surely far too long.
The Under-Secretary's explanation of this change is singularly inadequate. If the reason be that in some parts of the country courts only sit at intervals of a month, it would be far better if a few magistrates came together at more frequent intervals rather than that a man who has not been proved guilty of any offence should be kept in custody four weeks without being brought before them. To some it may seem that there is not much difference between three weeks and four, but I believe that to an accused person one day makes a great difference. I feel that three weeks is the absolute maximum, and it was only with some hesitation that I remained silent on that period at an earlier stage in our discussions.

Mr. Ede: I am impressed by the argument which has been adduced by the hon. and learned Member. I understand that the case put forward in another place was, as he hinted, that there are some courts that only meet once every four weeks. I know that is so because one court about which we have had an inquiry met only once in four weeks, and held an extraordinary sitting in order that the chairman could get an evacuation order against a tenant who had upset him. I could not help thinking that if that court could meet earlier for the chairman's convenience, it might on occasion

meet more frequently for the benefit of some person who was on remand. Therefore, I shall be prepared in this case to move that the House disagrees with the Lords in that Amendment.

CLAUSE 24.—(Power of Courts of Summary Jurisdiction to adjourn a case after conviction and before sentence.)

Lords Amendment: In page 27, line 43, to leave out "three" and insert "four."

Mr. Younger: I beg to move "That this House doth disagree with the Lords in the said Amendment."
This is consequential on the Amendment to which the House has just disagreed.

CLAUSE 25.—(Remand for inquiry into physical or mental condition.)

CLAUSE 26.—(Remand and committal of persons under 21.)

Lords Amendment: In page 30, line 4, to leave out from "by" to "the" in line 5, and to insert "this section."

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This and the next Amendment are to transfer to this Clause, which is the appropriate place, provisions which at present constitute Subsection (8) of Clause 19 and Subsection (2) of Clause 25.

CLAUSE 27.—(Procedure in respect of offences punishable on summary conviction or on indictment.)

Lords Amendment: In page 32, line 9, at end, insert:
or as authorising a court to deal summarily with any offence unless the proceedings were commenced within the period prescribed in that behalf by section eleven of the Summary jurisdiction Act, 1848, or by any other enactment applicable to the offence in question.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment applies the ordinary limitation on proceedings for summary offences. They must be commenced within six months of the offence unless a longer period is prescribed by an enactment relating to that offence.

CLAUSE 28.—(Amendment of Second Schedule to Criminal Justice Act. 1925.)

Lords Amendment: In page 32, line 16, leave out Clause 28

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment to leave out the Clause is being made because provision is made to the effect of Clause 28, by amendment of the Criminal Justice Act, 1925, at page 86, line 41.

CLAUSE 29.—(Committal for sentence in respect of indictable offences tried summarily.)

Lords Amendment: In page 33, line 5, to leave out "practicable," and to insert "available."

Mr. Younger: I beg to move, "That this House doth agree with Lords in the said Amendment."
This and the other Amendments to page 33 are drafting.

12.45 a.m.

Mr. Hale: The hon. and learned Member for Daventry (Mr. Manningham-Buller) put this point before, and I apologise for my failure in not supporting him on that occasion. The first Amendment is to alter "practicable" to "available." I should like to find out precisely what that means. The use of the word "practicable" is this, and it is a very important word, that where, for instance, a man is before the court and the next court is in two days' time, if the defending solicitor thinks it is not reasonably practicable to prepare the defence before then, the case is taken at the following court. The alteration to "available" means that it has to be the next court, whether convenient or not, whether there has been time to prepare a defence or not. The point is rather an important and practical one.

Mr. Manningham-Buller: I am obliged to the hon. Gentleman for supporting me in the inquiry I made about the effect of altering the word "practicable" to "available." "Practicable," I am sure, is the word which is normally used in statutes in regard to appeals—appeal "to the next practicable court." I refreshed my memory at an earlier stage today. The reason for the change had not occurred to me, but the hon. Member for Oldham has put his finger on it. He is right; it is a very important point in the administration of justice. People do not want to delay trials, but often an assize or quarter sessions start on a heavy case and immediately afterwards commit it to the next court available. It may well be that those defending want more time to get more information to put before the court to enable justice to be done. I am sure we passed too speedily from the other Amendment in view of the Under-Secretary's reply. He was not able to throw much light on this problem, but that should not deter us from putting the matter right.

Mr. S. Silverman: Assuming my hon. Friend is right and the word "practicable" was altered to "available" in order to establish the difference between the next coming session and the next session practicable in all circumstances, can it be explained why the word "available" was inserted at all? Why do we not leave the word "practicable" out of the words, "next practicable session" and be content with what is left.

The Attorney-General: My hon. Friend has put the point exactly. I do not think there is any material significance in the change of wording that has been made. Clearly, if it was intended to mean that the committal should be to the next sitting of the court it would have been inappropriate to use either the word "practicable" or "available." I think for some reason, which I confess does not occur to me, it was thought that "available" is the better word. I think the phrase should be construed to mean the next available sitting of the court. It clearly cannot mean the next sitting.
The word "available" must be given a qualifying meaning. If it was the next sitting of the court the word "available" would be otiose. It is intended to mean the next convenient sitting. The point taken in another place was a purely


verbal one. It was thought that there was no such thing as a practicable sitting of an appeal court. What is meant is the next one at which the case can be heard, that it is say, at which it can be properly heard. The word "available" was thought to be the appropriate word. There is no doubt that in another place great legal minds were brought to bear upon this, and it was thought that this word was the appropriate word. The difficulty we are in now—and I confess it frankly—is that we have already passed it by agreeing to the same form of words in an earlier Clause.

Mr. Mikardo: As one who loves the English language and hates to see it abused, I cannot accept the contention that there is no significant difference between the meaning of the word "practicable" and that of the word "available." There is a great significant difference. The word "practicable" can be applied only to an action, and not to a session, or to anything like a session. I do not know what the law is in these matters, but I think that I do know what syntax is. The Clause as at present drafted would be in a reasonable form, if one wanted to use the word "practicable," if it read that each case will be dealt with by the Appeal Committee at the next sitting of the Committee at which it is practicable so to deal with the case. I do not know whether that would make good law, but at least it would make good English. It cannot be good English to talk about a practicable sitting of a committee.

Mr. Pritt: I would say that it is not an important difference. I think the House ought to say that the word "practicable" has been doing this job for a long time, and certainly one can understand what is meant. It would be a pity to put in another word and have a little more uncertainty and a few more fees trying to make out what that word means, when one does know that meaning of the one word.

Mr. Benn Levy: It seems to me that it is surely right to say that the words are the same in meaning. The only evidence to the contrary is that it was thought desirable in another place to change the usual word "practicable" to the word "available." Surely the word "available" means, in this context, the next sitting of the Appeal Committee of which those concerned in the case can

avail themselves and, in point of fact, is more right in English than the words "practicable sitting."

Mr. Paton: Is there any practicable method by which this House, if it desires to retain the word "practicable," can do so, and at the same time change the original decision of "available" into "practicable"?

Mr. Speaker: I do not think it would be practicable to insert the word now, seeing that we have already inserted the other word in a previous Clause.

Lords Amendment: In page 34, line 2 at end insert new Clause "C"—

(Abolition of privilege of peerage in criminal proceedings.)

(1) Privilege of peerage in relation to criminal proceedings is hereby abolished.
(2) In any criminal proceedings the jurisdiction to be had and the procedure to be followed, the punishments which may be inflicted, the orders which may be made, and the appeals which may be brought shall, whatever the offence and wherever the trial is to take place, be the same in the case of persons who would but for this section be entitled to privilege of peerage as in the case of any other of His Majesty's subjects.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment which has been inserted in another place effects a very considerable change in the way in which members of another place can be dealt with in criminal proceedings in future. The Government were aware that they desired in another place to put themselves in the same position as commoners in regard to this matter. But we thought it was better that the Clause should be proposed in another place and sent down here. I do not know that we are very much interested in it, but I do think that it shows a marching with the times, in one particular matter, which we can welcome, and which I hope is a sign of grace; and I think that we can thank their Lordships for descending to our level in this matter.

Lords Amendment: After the Amendment last inserted, to insert new Clause "D"—

(Jurisdiction and Procedure in respect of certain indictable offences committed in foreign countries.)

(1) Any British subject employed under His Majesty's Government in the United Kingdom


in the service of the Crown who commits, in a foreign country, when acting or purporting to act in the course of his employment, any offence which, if committed in England, would be punishable on indictment, shall be guilty of an offence of the same nature, and subject to the same punishment, as if the offence had been committed in England.
(2) A person may be proceeded against, indicted, tried and punished for an offence under this section in any county or place in England in which he is apprehended or is in custody as if the offence had been committed in that county or place; and the offence shall, for all purposes incidental to or consequential on the trial or punishment thereof, be deemed to have been committed in that county or place
(3) Subsection (4) of section one of the Administration of Justice (Miscellaneous Provisions) Act, 1933 (which continues the procedure by way of indictment preferred before a grand jury of the County of London and County of Middlesex in the case of indictments under the enactments specified in the First Schedule to that Act) shall cease to have effect; and subsection (2) of this section shall apply to any offence in respect of which a bill of indictment could, but for this subsection, have been so preferred as it applies to an offence under this section.

The Attorney-General: I beg to move "That this House doth agree with the Lords in the said Amendment."
The effect of this new Clause is broadly to adapt to modern circumstances a provision which has been on the statute book since 1802, but the procedure under which has become virtually obsolete. It enables a British subject, who while employed as a Crown servant abroad, and commits an indictable offence, to be tried under the ordinary procedure in the courts in this country.

Mr. John Foster: I believe that the words
… any offence which, if committed in England, would be punishable on indictment …
are the words of the old Section, but from the point of view of a former lecturer in international private law, they do make nonsense because an offence committed in England is often not an offence in a country abroad, and the definition does depend on the interpretation. It is an offence, for instance, to tell fortunes by palmistry in this country, but it is legal in Belgium. If one is charged with dangerous driving, it has to be remembered that one is allowed to drive on the right side of the road in France, but on the left in England, so that one has to decide which part of the road is correct: perhaps it would be the middle. It

has always been a subject for criticism for those who dabble in private international law that these words are not logical. One cannot do very much about them at this stage, except register a protest.

The Attorney-General: This Clause, as I have stated, only covers offences by persons in the service of the Crown committed in the course of their employment, and palmistry is not one of the duties of, for instance, His Majesty's Ambassadors.

Lords Amendment: After the Amendment last inserted, to insert new Clause "E"—(Issue of single summons on more than one information.)
(1) Where two or more informations are laid under the Summary Jurisdiction Acts against the same person or persons, a single summons may be issued under these Acts against that person or each of those persons in respect of all the informations:
Provided that the matter of each information shall be separately stated in the summons.
(2) Any such summons as aforesaid shall be treated for the purpose of the Summary Jurisdiction Acts as if it were a separate summons in respect of each information.
(3) The foregoing provisions of this section shall apply to complaints as they apply to informations.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This is an addition to the Bill designed to save time and labour to clerks and justices, and it cannot prejudice offenders.

Lords Amendment: After the Amendment last inserted, to insert new Clause "F"—(Supply of copies of information to persons committed for trial.)
(1) Where any person is entitled to copies of depositions taken under the Indictable Offences Act, 1848, he shall be entitled also to copies of the written information (if any) required by Section twenty of that Act to be transmitted with the depositions; and any enactment relating to the funishing of copies of depositions shall accordingly apply to any such information as it applies to depositions.

The Attorney-General: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This was introduced as a result of an undertaking which I gave on the Report stage, and it enables a defendant to receive a copy of any written information when he is committed for trial.

Mr. Weitzman: This new Clause does not cover the scope which was covered by the Clause I put down on the Report stage, but it goes a long way to cure the evil of which I complained. It is a real step forward in securing impartiality in the trial of an accused person.

CLAUSE 31.—(Challenge of juries and separation of juries.)

1.0 a.m.

Lords Amendment: In page 34, line 15, at end, insert "and any juror or jurors for cause."

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
In moving to agree with this Amendment and those in lines 15, 18 and 19 I ought to say that those of us who served on the Committee gave a great deal of attention to the right of challenge being retained, and I think that these Amendments clarify the position and make it beyond doubt what the right will be. The proviso which has been inserted requires that an opportunity to challenge each juror separately shall be furnished to the prosecution and the accused before the oath is administered. The method by which this opportunity is to be given is to be laid down by the judges. The procedure will be probably that each juror will have to stand and answer to his name so that the challenger may be able to identify the person or name of the person against whom he may object. I think that we have satisfactorily solved the various problems confronting us when the original alteration was proposed.

Mr. Manningham-Buller: I think that the Home Secretary is quite right and I thank him. May I draw attention to a serious error of spelling of "challenge" in line 14?

CLAUSE 32.—(Appeals from courts of summary jurisdiction to quarter sessions.)

Lords Amendment: In page 34, line 32, at end, insert:
(2) For the purpose of the last foregoing subsection the expression 'sentence' includes any order made on conviction by a court of summary jurisdiction, not being—


(a) probation order or an order for conditional discharge;
(b) an order for the payment of costs;
(c) an order under section two of the Protection of Animals Act, 1911 (which enables the court to order the destruction of an animal)."

Read a second time.

The Attorney-General: I beg to move, as an Amendment to the Lords Amendment, at end, to add:
(d) an order made in pursuance of any enactment under which the court has no discretion as to the making of the order or the terms thereof.
This is a matter raised by the right hon. and learned Member for West Derby (Sir D. Maxwell Fyfe) on Committee and Report stages and to which, when the matter was in another place, we were able to give further consideration. I think the Amendment which now appears will largely meet the point which the right hon. Gentleman had in mind. It will give a right of appeal against any order made on conviction by a court of summary jurisdiction. The Amendment to the Lords Amendment contains an exception in regard to an order made in pursuance of any enactment under which a court has no discretion as to the making of the order or the terms in which it is made. It is little more than a drafting Amendment, and unless the right hon. and learned Gentleman wants me to deal with it, I hardly think it is necessary to do so. Its purpose is obvious, as where there is no discretion, there obviously can be no appeal.

Sir David Maxwell Fyfe: I wonder if the House will allow me to intervene for a moment to express my gratitude to the Government for meeting this point which we raised on the Committee stage?

Mr. J. Foster: May I ask if this covers the unfortunate case where a man was obviously unjustly convicted of peering through opera glasses at girls undressing when in fact he was using a dictaphone? I agree it sounds funny, but it was a tragedy for this young man in the Public Trustee Office. This case came before the magistrate who, if I may say so with great respect, took the wrong view and bound the man over to keep the peace. He tried to appeal on the ground that he never had any opera glasses and was only using a dictaphone which these girls had


mistaken for opera glasses, and they thought he was peering at them while they were undressing. He could not appeal, and, therefore the case went against him because it was thought that the magistrate was of the opinion he was looking at the girls through opera glasses. Whether this Amendment does cure that sort of thing I do not know.

The Attorney-General: The answer to that question is "no," because in cases like that where a man is bound over he has consented to be bound over, and having consented he cannot subsequently change his mind and appeal. The person in the case to which the hon. Member refers evidently thought that the simplest course would be to consent. It would be quite inappropriate for him to reopen the whole matter by taking it to appeal.

Mr. Hale: I think that explanation a little unsatisfactory. I say this with some seriousness. It is now seven minutes past one o'clock, and to carry on this discussion I am holding the 35 pages of Lords Amendments to the Bill in one hand and a copy of the Bill itself in another hand and the Order Paper in my third nonexistent hand. I am wondering whether it is wise to go on so quickly when some matters are being passed before discussion. As I understand Clause 32, it is intended to give the right of appeal to everyone convicted by a court of summary jurisdiction even if he pleaded guilty. There is a right of appeal against sentence after conviction and that appears to me to be an important Clause. If I read correctly the proposed insertion at the end of the Amendment, it limits it so that you cannot appeal against a probation order.
If a man consents to be bound over that really is a highly technical and grossly misleading representation of what takes place.
When a man is before the court and is told that the Bench has found the case proved, the next thing that happens is that a request is made to know whether he has any previous convictions and if the police inspector has omitted to bring a record or has not any, that fact is reported and then the Bench go back and say, "You are bound over." Then the clerk mutters to the man, who may be very glad to get away anyhow. He is given this choice and he either says,

"Yes" and goes, or he is given a fair hearing.
I do feel that in many cases it is exceedingly important to have the right of appeal. If a person is found guilty and is conscious of innocence, he ought to have the right of appeal. There is, unfortunately, a growing practice, particularly in the metropolis, in my limited experience here, of magistrates taking the view that on the whole, a dismissal on payment of costs is a fair compromise between a doubt about the guilt or innocence of the accused, a desire to do justice to the diligence and vigilance of the police and a feeling that people who come into the courts, after all, should not go away thinking that it is the sort of place one can venture into with equanimity.
When the Bench is left with a feeling of doubt and a thought that the accused is probably innocent, the question of dismissal on payment of costs is frequently employed as a useful method of registering some measure of deprecation of some part of the conduct of the accused while, at the same time, not desiring to express to clear a conviction of the guilt of the accused. There are many cases where a man wants a right of appeal to restore his character, and he ought to have that right.

Mr. Pritt: I wish to support the hon. Member for Oldham (Mr. Hale) and to say emphatically how important it is that there should be a right of appeal for people who are bound over. The point I should like to put is that these people who are supposed to have consented to be bound over may not even have gone through the mental processes mentioned by the hon. Member for Oldham. Many of them are simple people. They are told that they are to be bound over and they accept that they are being bound over. They do not know that they are bargaining away the right of appeal which they ought to have.

The Attorney-General: I think that there is some misunderstanding here. A person put on probation or conditional discharge can, of course, appeal against his conviction. What he is not permitted to appeal against under this Clause is a probation order. If he agrees that he has been justly convicted and then agrees that he should be placed on probation it is not right that he should subsequently be allowed to reopen that matter. The


very basis of a probation order is that the defendant has agreed to be bound over and placed on probation. Having consented and having agreed to be bound over—one has to assume that these things are properly done in the courts which have jurisdiction to administer this branch of the law—it really would be quite wrong to allow such a person to reopen the whole matter.

Mr. J. Foster: I think that it is wrong to say that under the Statute of 1362 one has to consent. The surety for good behaviour is the requirement which the magistrates can impose on people to keep the peace—

Mr. Pritt: I do not think that that can be relevant, because the whole of that statute concerns being bound over without being charged. That is very different.

Mr. Foster: It is a very great injustice if somebody who maintains that he has not committed an offence—has not intended to break the peace—is asked to give sureties and then finds that he cannot appeal.

Mr. Hale: A most interesting article was published in 1912 which established by photographs that the origin of that law is that a clerk writing in the reign of Queen Elizabeth missed a "not" out of the statute passed in the reign of Edward III.

Mr. Deputy-Speaker (Major Milner): Quite a number of hon. Members have spoken more than once. This point is purely recondite, and I doubt very much whether it has relevance to the Amendment before the House. In my view, the matter to which the hon. Member is now referring has no relevance to the Amendment.

CLAUSE 33.—(Bail on appeal, case stated or application for certiorari.)

Lords Amendment: In page 36, line 6, leave out from "aforesaid" to "has" in line 8.

1.15 a.m.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment and the tour which follow in lines 12, 16, 29 and 42 are drafting Amendments. They make it a provision that it shall not be necessary in cases coming under paragraphs (b), (c) or (d), where the appellant has successfully appealed to the High Court, for the appellant to appear again before a court of quarter session or a court of summary jurisdiction, as the case may be.

Lords Amendment: In page 37, line 46, to insert new Clause "G" (Power of Court of Criminal Appeal to order new trials).
(1) Notwithstanding anything in section four of the Criminal Appeal Act, 1907, where an appeal against conviction is allowed by the Court of Criminal Appeal under that Act and it appears to the court that the interests of justice so require, the court may, instead of directing the entry of a judgment and verdict of acquittal, direct the appellant to be re-tried upon the whole or any part of the indictment:
Provided that—

(a) where the appellant was acquitted on any part of the indictment, the court shall not direct him to be re-tried on that part; and
(b) if the appellant, being convicted on the re-trial, again appeals against his conviction under the said Act, the court shall not direct him to be re-tried a second time

(2) An appellant who is directed to be retried under this section shall be re-tried before such court as the Court of Criminal Appeal may direct; and where by virtue of any such direction an appellant is to be re-tried before a court of assize or quarter sessions before which he could not have been tried but for the direction, that court shall have jurisdiction for all purposes connected with the re-trial as if the offence had been committed within the jurisdiction of the court.
(3) Where the Court of Criminal Appeal direct an appellant to be re-tried under this section, the court may make such orders as appear to the court to be necessary or expedient for the purposes of the re-trial, including orders—

(a) for the amendment of the indictment upon which the appellant is to be re-tried;
(b) for the custody or admission to bail of the appellant, and for the attendance of witnesses and other persons at the re-trial.

(4) Where an appellant is re-tried by virtue of a direction under this section before any court of assize or quarter sessions before which he could not have been tried but for the direction, any costs payable in the case under the Costs in Criminal Cases Act, 1908, shall in the first instance be paid in the same manner as if the offence had been committed in the county or county borough in which he is tried, but shall be recoverable from the treasurer of the county or county borough in which the offence was or was supposed to have been committed.


(5) In relation to an appellant who was tried separately on any count or counts of an indictment, the provisions of this section shall have effect as if those counts had been found in a separate indictment.

The Attorney-General: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
I rather wish that I could content myself with holding the ring in this matter and allowing my hon. and learned Friends on each side of the House to fight out the matter between them, but it is, of course, right and proper that the Government should indicate a view in the matter. Although there is no Departmental interest at all involved, we have after very careful consideration with my noble Friend, come to the conclusion that we ought now to advise the House not to agree with this Amendment. This is a matter which was raised on the Report stage in this House, and I then gave the Government's view. I apologised to the House for reading what I said, but it is right that we should make our position in the matter perfectly clear. I do not propose to read out all I said but just the appropriate sentences. This is what I said:
I must confess at the very outset that I have great doubt about the wisdom of the innovation which is proposed in this new Clause. I think there are occasionally before the Court of Criminal Appeal cases where the facts are perfectly clear, where there is no doubt that the jury's verdict was correct but where, owing, as my hon. Friend has said, to some possible technical mistake in the summing up or some mistake on the part of the prosecution, the Court of Criminal Appeal has been compelled to hold that there has been some misdirection or some wrongful admission of evidence and consequently, to allow the appeal and to let the appellant go free. But these cases are really very exceptional.
I do not think that the interests of justice are substantially prejudiced by the fact that on occasion a guilty man may go scot-free. Certainly, I cannot sleep uneasy in my bed, or allow my sense of justice to be outraged because now and again an accused person has in the past got the benefit of a mistake made by the prosecution or even occasionally by the courts.
I then set out in some detail the number of disadvantages which I thought were attached to this proposal to enable the Court of Criminal Appeal to order a new trial. I finally said this:
On the other hand, the Government cannot close their minds to the fact that the judges of the Court of Criminal Appeal have repeatedly sought some such power as this as being necessary for the proper administration of justice. We must accept the view that

occasionally—very occasionally, and subject to great safeguards—there may be some cases in which it is desirable that there shall be a new trial. We must feel assured, as indeed we would expect, that if this new power is given, judges will exercise it with the greatest discretion, most sparingly, and in only quite exceptional cases.
We are therefore not prepared to accept the Clauses in the terms drafted on the Order Paper, but to accept the principle. We are prepared to accept the principle subject to safeguards as to new trials for the same charge, as to the possibility of more than one trial being ordered in respect of the same matter, in respect of costs, and so forth. If, in the light of what I have said, the hon. Member for Oxford is prepared to withdraw the new Clause now, we will undertake to give consideration to the matter and the principle involved, and to introduce Clauses into the Bill when it is considered in another place."—[OFFICIAL REPORT: 14th April, 1948: Vol. 449, c. 1106/8/9.]
At that time we thought there was a consensus of legal opinion in favour of the proposal, and that it might be possible to find words—we thought those put on the Order Paper on Report here were unacceptable—which might provide adequate safeguards against the manifest dangers and disadvantages which attach to this proposal that the Court of Criminal Appeal, in criminal cases, should be able to order a man who has already been tried to be put on trial again.
In that understanding my noble Friend in another place introduced the Clause which appears on the Paper. He made it abundantly clear that no Departmental or Government interest was involved in the matter, and still less any party interest, but that the Clause had been put down because some judges of the Court of Criminal Appeal had from time to time indicated that it would be useful to that Court to have the power, in certain cases, to order a new trial. The Clause was eventually carried on a free vote, but not without a very strong conflict of high judicial opinion.
In the meantime it became more and more apparent that it really was rather difficult to devise a Clause which did contain adequate and effective safeguards against what I have called the manifest dangers of this new departure in our practice, and which would at the same time leave the power to order a new trial usefully available in any but the rarest and most improbable cases. On the other hand, it really is not proper, as it seems to us, to legislate for particular and highly unusual cases which perhaps are


only likely to occur, if I may use a colloquial phrase, once or twice in a blue moon. It is particularly undesirable when the legislation itself, as in this Clause, is of a highly controversial nature.
Why is it controversial? Mainly I think because it does offend against the fundamental principle to which we have hitherto strongly adhered in matters of this kind, that no man might to be put on trial twice. Under the existing powers which the Court of Criminal Appeal possesses, if it is satisfied that, despite some irregularity which may have occurred in the proceedings in the court of first instance, no miscarriage of justice has taken place and any reasonable jury would have convicted, then the Court of Criminal Appeal, despite the irregularity, is entitled to confirm the conviction. If, on the other hand, the Court of Criminal Appeal concludes that if there had not been any irregularities no reasonable jury would have convicted, then it is its manifest duty to allow the appeal and to set the appellant free.
The intermediate case is that in which the Court of Criminal Appeal is satisfied that there has been some irregularity, that that irregularity is so serious that the conviction cannot be allowed to stand, and it does not know whether or not a reasonable jury trying the case, without irregularity, would have convicted or not. It is in that kind of case that under this Clause the Court of Criminal Appeal would be able to order a new trial. But I must say that for myself, as, indeed, I said in the plainest terms on the Report stage when we discussed the matter, I find it very difficult to think that a second trial in such circumstances could ever really be an entirely fair trial.
The jury in the second case would almost inevitably know that the person whom they were trying had been previously convicted by another jury, that he had appealed to the Court of Criminal Appeal, and that his appeal had not been successful in procuring his acquittal but had resulted simply in the Court of Criminal Appeal deciding that he ought to be put on his trial again. It is difficult to think that in such circumstances a person ordered to undergo a second trial would not start out at a very heavy disadvantage indeed. In well conducted cases—and, of course, in our courts all

cases are well conducted—circumstances are not likely ever to occur in which it should be necessary for the Court of Criminal Appeal to order that a fresh trial should be had. If very occasionally, from time to time, such cases do take place I cannot myself think that any very great harm is done—any outrage to our sense of justice—by allowing a possibly, but not certainly, guilty man to go free.
It now turns out that, so far from there being a consensus of legal opinion in favour of this new Clause, there is, in fact, very strong legal opinion against it. Many distinguished lawyers in another place and many distinguished lawyers in this House are apparently wholly opposed to any change in the law in regard to this matter. I have consulted my noble Friend in regard to the matter, and he has felt that if in this House, as in another place, there is a strong conflict of view, we ought not to press for a change in the law which, after all, has been operating now for a considerable time, and in the administration of which, as at present constituted, the public have complete confidence—confidence that might be shaken by making any change in this direction now.
The acceptance by the Government of the principle underlying this proposal was from the first made conditional upon our being able to find a practicable form of words which would embody adequate safeguards, and, of course, on there being a consensus of legal opinion in support of the matter. My noble Friend in another place—and as this was a pronouncement of Government policy I believe I am entitled to quote it—said:
They are perfectly prepared to leave it to the collective wisdom of your Lordships" House to decide. It is in no sense a Departmental matter, still less a party one.
Of course, we have given the very greatest and gravest consideration to the views that have been expressed by the learned judges in another place and indeed in the course of trials in the Court of Criminal Appeal. Whilst we have the greatest respect for the judges who have expressed those views, we cannot possibly disregard the fact that other judges and other distinguished lawyers have taken diametrically opposite views. In the absence of any agreement about the matter, we do not feel it would be right to ask the House to alter the existing law.

1.30 a.m.

Mr. Gage: I have no hesitation whatever in supporting the right hon. and learned Gentleman the Attorney-General in this matter. I do so in spite of that fact that it might involve my voting with the Government for the second time tonight, but that does not trouble me nearly so much as the fact that a number of eminent legal authorities, with far more experience in this matter than I have, take the view that the Court of Criminal Appeal should have this power. I think it is right that should be said, because I have a great respect for those authorities and indeed the Court of Criminal Appeal has itself a number of judges who have constantly said it should have this power. Therefore, I think it is right one should give fairly precisely reasons for disagreement.
First and foremost, I believe that this Amendment infringes the fundamental principle of our criminal law—namely, that it is Better that 20 guilty men should escape the consequences of their crimes than that one innocent man should be convicted. That is something every lawyer learns in his early days. I believe this Amendment infringes that most important principle. It is important that the House should realise that the prosecution in a criminal case has no right of appeal. That is right. There is no member of my profession who, at one time or another, in prosecuting in the criminal courts, has not had the experience that, after the accused man had been acquitted, it was found that that was due to a wrong decision, and felt he would like to appeal. But there is no right of appeal. The only cases in which there can be an appeal are those in which a person has been convicted. The second matter to remember is that the Court of Criminal Appeal at present has the power, even though there has been an irregularity in the trial, to uphold the conviction, provided they consider that no substantial injustice has been done. It is in these circumstances that we are asked to give them this additional power of sending cases back for retrial.
We have to consider what this is going to mean. I do not believe that anyone who has heard a jury pronounce their verdict of guilty has not been affected by it. Even in the most trifling offences, it is difficult to hear it with complete equanimity and composure. One can imagine the feelings of the unfortunate person on

whom the verdict is pronounced. At least he can feel now that that part of it is all over. There is no chance of his being tried and having to go through that dreadful ordeal again. I think that is most important. It is wrong that an unfortunate man should have to go through that ordeal for a second time because the prosecution has made a mistake, as they often do, or the judge misdirects the jury.
Secondly, there is the question of expense. That is a most important point to consider. I know that it has been said, in another place, that there are provisions for poor persons' defence; but after all, most people who are tried on a serious charge are not content with that. They mortgage what little savings they have, probably everything they have, in order to have themselves properly defended. It seems to me wrong that they should be submitted to that tremendous expenditure a second time.
Finally, there is the important question of prejudice. The House will know that a man's convictions are read out if he has been convicted, and it will realise that witnesses are bound to talk afterwards, and that the mistakes which may have been made by prosecution witnesses are likely to be remedied the next time. It seems to me, therefore, entirely wrong that a man should be sent back.
Another very important point is that, as it now stands, this Amendment will not achieve its original object. The House will remember that all the arguments were based on the fact that two members of the Metropolitan Police were found guilty of conspiracy to steal, and not guilty of stealing. Almost all those who supported this particular Amendment pointed to that case, and said that it was the type of case which they desired to remedy because the verdict was repugnant. The Amendment in its present form will not remedy that, because the court cannot send back for trial a case in which there has been a verdict of not guilty. That, I think, is a very important point.
It is only if the court can send back a finding of not guilty that this Amendment achieves its object. In those circumstances, I have no hesitation in saying that I hope the House will disagree with the Lords in this Amendment. I have heard it said that this will be used sparingly. These words are always used when some infringement of our liberties


is introduced. I do not think it is at all a satisfactory method of introducing this matter which, in my view, infringes the most fundamental principles of our criminal law. I do not say this out of any sentimental affection for the convicted person, but out of regard for our criminal law, which I am sure rests largely, if not entirely, upon the principle which I stated when I started my speech.

Mr. Manningham-Buller: I am afraid I find myself, on this issue, in disagreement with the hon. Member for South Belfast (Mr. Gage). I think there is, among lawyer-Members on both sides of the House, as well as lawyers outside the House, considerable disagreement upon this issue. I can understand why the Attorney-General wished to content himself with holding the ring, because his speech tonight indicated clearly a departure from acceptance of the principle to which he referred in the speech he delivered on the Report stage, and from which he has already quoted. And it is a departure, I venture to suggest, without any adequate explanation of the reasons which have led him to that conclusion. After all, it was known then what were the views of the Court of Criminal Appeal. It was known then what the objections were to giving this right of re-trial, because the learned Attorney-General referred to them.

The Attorney-General: Perhaps the hon. and learned Member will allow me to say that it was not known, then, that any of His Majesty's judges were opposed to the proposal. I had my own views about it, and I thought it right to express them to the House. But I did not know, at that time, that those views would command support in other legal quarters. I thought that it was not right to insist on the correctness of my own views in the face of the demands made by the judges of the Court of Criminal Appeal for this new Clause.

Mr. Manningham-Buller: I would point out that while the Government have honoured their undertaking to introduce a Clause into the Bill when it was considered in another place to give a right of re-trial, they have, after honouring their undertaking in that respect, now sought to omit Clauses put into the Bill by the Government. In dealing with the speech of my hon. Friend behind me, I

have to say that a great many of the objections made are objections which would weigh heavily on any Court of Criminal Appeal before the ordering of a new trial. As to whether the court should have such power, I for one say that if we were considering the Clause as originally introduced into another place, I would unhesitatingly vote against it because I would never agree that any man could again be put on his trial in respect of a charge of which he had been acquitted. I would never support the view that a man could be put on trial again because of something which the prosecution had done or had failed to do. The conduct of the prosecution must surely rest where it is.

Mr. S. Silverman: As I understand it, what the hon. and learned Gentleman is saying is that a case is made out for a limited power; but this is not a limited power. Where it appears to the court that the interests of justice so require it, a new trial may be ordered. What could be more fair than that?

Mr. Manningham-Buller: I may have been misled because of the words of the Lord Chancellor in another place. I may not, of course, quote what was said, but my impression, based on what I have read, was that there would, in practice, only be a right of re-trial where an error had been made by a judge or chairman of Quarter Sessions in his summing-up. I base that observation on what I have read, and if that is the right interpretation, then I, personally, am in favour of this Clause. I believe that there must be very great difficulty in the Court of Criminal Appeal in reading the long record of offences, in determining cases in which there has been a substantial miscarriage of justice. Due weight may have been given to the evidence; the weight which was attached to that evidence months or weeks before by a jury, and in certain cases a wrong conclusion will be drawn. It might be said by the court that the error made no difference, that there was consequently no substantial miscarriage of justice, when the error made a lot of difference in the minds of the jury, and vice versa. I feel that the right should be given to the Court of Criminal Appeal to order a retrial in these few unusual cases where there had been an error, not on the part of the prosecution but on the part of the court.
1.45 a.m.
The Court of Criminal Appeal has often said, from the very first year of its existence, that in order to do justice in certain cases, not often, but occasionally, the Court should have the power to order a new trial. I believe that if the court had that power justice could be done in those few cases. I do not personally feel that this would tell against the accused person. I can see the possibility that the accused person, against whom the evidence has been very black, who has been convicted, and who gets acquitted as a result of the decision of the Court of Criminal Appeal, on a technicality, might, in certain circumstances, prefer to take his chance again at the hands of the jury, and have their verdict on the facts. I assume from what has been said that we shall disagree with the Lords upon this Amendment, and I express my regret that it has not been accepted that the Court of Criminal Appeal should have this power.

Mr. Paget: I always listen with very great respect to what is said by the hon. Member for South Belfast (Mr. Gage), but on this occasion I must admit that I cannot see that any question of principle is involved here. I cannot see that the question of a second trial involves any principle in our law. After all, when juries disagree there is a second trial. The important thing is whether we are providing machinery which would give a satisfactory second trial. When juries disagree the evidence of a man's character, his previous convictions, are not given in evidence. Here, when the man has been convicted in unsatisfactory circumstances the evidence of his previous convictions is published and known publicly. That seems to me to militate against the fairness of a second trial.
The next point is this: A man may have exhausted his financial resources in defending himself. Surely it is utterly unfair, if, because of a mistake which was not his mistake, he is involved in that new expense. I would not be opposed to the principle of ordering a retrial provided, first, that the State provided the whole costs of that second trial. I think that is the first essential. Second, I think that the trial should take place in quite a different district from the first so that the jury should not be prejudiced

by the evidence, particularly the convictions which might have been given in the previous trial.
Third—and it is vitally important—there cannot be a satisfactory second trial if the issues upon which a man has been acquitted are not re-opened. We all know that in framing indictments there are alternative powers. A man may be charged with stealing or with receiving. He may be convicted for receiving when the evidence is to the contrary. That man's re-trial might be ordered, but it would be quite a futile re-trial when the other issue was not open to the jury. I would say, of this Amendment, that the provisions made for re-trial are highly unsatisfactory and that upon these grounds we should reject it.

Mr. Hogg: This is a difficult hour at which to address the House on what is admittedly a technical subject, and one upon which far greater experts than I are profoundly in difference with one another. But I have this claim to address the House—I am the putative father of this Clause. I did propose the original Clause on the Report stage, which the Attorney-General accepted in principle and which led to the present Clause being introduced in another place. It is on this account that I feel I ought not to abandon my stepchild quite so readily as the Attorney-General has done, he being the mother of the infant. I think he has jettisoned the baby too soon, and I must say that although I regret the difference between distinguished lawyers of various political parties, I am not particularly daunted by it. They always differ, in my experience, on most subjects and one must in the end use one's professional experience, even if it is only small and humble, to the best of one's ability in an effort to achieve what is right.
I differ from my hon. Friend the Member for South Belfast (Mr. Gage), and I differ fundamentally from those who take the opposite line. I think all English people—if I may say so, as a Celt—rather tend to regard criminal justice as something rather like fox-hunting—an elaborate ritual to be followed with highly technical rules in which, whatever is done, the fox must not be shot but may be torn to pieces by hounds.

Mr. Pritt: Is not the difference that there is a pretence that the fox enjoys it?

Mr. Hogg: It is described as the kind of sport which must be played according to the rules. One recognised rule is let the best man win, and let the Devil take the hindmost. Being a rather emotional Celt, I do not take that view about criminal justice. I think its prime object is to convict the guilty and acquit the innocent and I am prepared to agree that where there is a danger of a mistake taking place, it is better that a guilty man should escape than that an innocent man should be convicted. I am concerned that it has always been a fundamental principle of our criminal law that 20 guilty people should be acquitted, rather than that one innocent person should be convicted.
I think we must apply the rules of common sense to criminal justice, and not those of an elaborate mathematical sort. The real question at issue is whether the Court of Criminal Appeal should, in any circumstances, have the right to order a re-trial, rather than to direct a verdict of not guilty in the event of an appeal succeeding. It is important to add those last words—"in the event of an appeal succeeding." Most of us would be content to say, for reasons which have been given from all sides, that in the ordinary case, where an appeal succeeds, the correct result would be for a verdict of acquittal to be entered straight away. That is the ordinary case. But the contention has been made—it is a contention with which I, personally, agree—that there is a minority of cases where justice is not done simply by entering a verdict of acquittal. The examples have been given.
I only want to put one or two considerations why I find them conclusive. I pay great attention, in spite of Lord Simon, Lord du Parcq and the right hon. and learned Gentleman the Member for West Derby (Sir D. Maxwell Fyfe), to the repeated asseverations of the Court of Criminal Appeal itself. I do not believe that hon. and learned Gentlemen in this and in another place are entirely right in supposing that this is a provision which applies against the fox which is being hunted according to the English rules.
Now I will say something which I hope will not cause offence, or be thought disrespectful. I have from time to time—not very often, because it is not really my line of country—appeared before the Court of Criminal Appeal. It is not a tribunal before which I like appearing

very much. There is a nasty atmosphere about that court. [Laughter.] I was afraid that hon. Gentlemen would laugh, but I mean that seriously. It has an atmosphere of repressed misery, of bad temper—bad temper between bench and Bar—or even bad feeling, harsh judgment and all kind of things. I am not criticising the court in any way. I am going to say what I think about it, and what I have found about it.
My belief is that the reason for that unpleasant atmosphere in that court is very largely that that court has not got power in a suitable case, to order a re-trial. That is my belief: I may be wrong, but that is the view which I have formed about it. I think it is the case that if it had power to order a re-trial in a suitable case it would listen more sympathetically to appeals than it does, knowing that the matter could be investigated again. One of the reasons why it is so very difficult in present circumstances to get a criminal appeal on its feet is the feeling of the court itself that it must not allow appeals because if it does so, many guilty people will get off. I sincerely believe, as a result of my experience, that if it had the right in a suitable case to direct new trials it would listen far more sympathetically to appeals than it does now. I may be wrong about that, but it is my view, and it has been my view for a number of years.
May I also direct the attention of the House to another factor in which I think they would be wrong in supposing that the power to order a new trial necessarily tells against the fox in this English blood sport? Take, for instance, the case which happened not very long ago where a murder was committed and, after the conviction, somebody else confessed to the same murder. Let me remind the House of what actually happened. I agree that, as matters stood in that case, no great injustice was done, because the confession happened to be bogus; but sooner or later we will get a case where a conviction of this kind takes place and the confession is genuine. That will happen sooner or later, because sooner or later everything happens and sometimes it happens rather sooner than later.

Mr. Paget: It might even happen after execution.

Mr. Hogg: We are not talking about that now. We have come to a conclusion


about that, and I certainly do not want to reopen the matter. This topic is difficult enough by itself without re-opening other questions which we have already discussed.
Let us consider what happened on that occasion, and why it happened. It so happened that I was sitting in the court when the case came on, because I had other business to transact afterwards. The court decided that in spite of the other confession it could not listen to any fresh evidence at all—in other words, that conviction, which was being impugned by the appellant, must stand so far as that court was concerned. It said, "If we listened to the other confession the whole matter would have to be reopened and tried again. We are not constituted in such a way that we can hear the evidence and, under the law as it stands, we cannot direct anybody else to listen to it."

2.0 a.m.

Mr. Hale: rose—

Mr. Hogg: I ought to conclude what I was saying, and I will try to anticipate the hon. Member's interruption. The next stage in this rather unhappy story was that, faced with this confession, and with the obviously unsatisfactory situation which the decision of the Court of Criminal Appeal gave rise to, the Home Secretary said, "I will institute an inquiry of my own. A most unsatisfactory situation has arisen." The inquiry which the Home Secretary instituted was the best thing he could do, but an administrative inquiry, held under the auspices of the Executive, is not the proper way to find out the truth in criminal proceedings. I have no doubt that the inquiry was very properly held by a distinguished lawyer, the facts properly gone into, and, in this case, a perfectly correct decision was arrived at. If, in fact, the power had existed in the Court of Criminal Appeal to order a new trial a very much more satisfactory situation would have obtained, both from the point of view of the public and the prisoner.

Mr. Hale: My recollection of the case differs slightly from that of the hon. Member. I recall that the Court of Criminal Appeal had power to hear fresh evidence, but declined to do so. They have the power to hear evidence, and they will hear it if it was not reasonably available to

the man when the case was originally heard, but they will not hear evidence that was reasonably available at the original hearing. This new Clause would not give the Court of Criminal Appeal the power which the hon. Member suggests. They can order a new trial on the basis of the facts before them, but could not, under this new Clause, secure the evidence to enable them to consider whether a new trial would be worth while.

Mr. Hogg: The hon. Member is wrong on both points. The decision certainly was as I stated, because I heard it and I had to refer to it in another matter. The Court of Criminal Appeal have, under the statute, power, in certain circumstances, to hear fresh evidence, but they declined to do so in this instance on the grounds that I have stated. They have decided in similar cases not to hear fresh evidence, because—

The Attorney-General: I am loath to interrupt the hon. Gentleman, but I do not think that is what the court decided. I had to consider the matter with a view to the possibility of the case going to a higher court. If they decided that in any circumstances they would never hear fresh evidence, I should have had carefully to consider whether such a decision could possibly be upheld. I do not think that that was the effect of that decision.

Mr. Hogg: I cannot argue a point of law with the Attorney-General at this hour of night, nor would I seek to do so—it would be both foolish and wasteful. But I am convinced that that was the effect of the Court of Criminal Appeal's decision, to which I listened. What is certain is that whether or not it would be followed in a similar case, and I am certain it would be, it was the court's decision in that particular case.

Mr. S. Silverman: I think I can clear up the doubt here. Is it not the case that the Court of Criminal Appeal declined to hear the new evidence, not because that would involve them in retrying the case of the appellant, but because, in their opinion, that would involve them in trying a man who had never been charged at all? They said, "If we are to consider this confession, we can only do so on the basis that the confessor is the guilty person, and that we are not competent to do." That is what they said, whether they were right or wrong.

Mr. Hogg: I do not altogether agree with the hon. Member. Although they said what he says they said, they also said what I say they said. They gave two reasons for their decision, and one of them was the one I am talking about now. It was plain, on reading the judgment of Mr. Justice Humphreys in that case, that he was taking up the attitude that the Court of Criminal Appeal could not retry a whole murder case itself, and that the new evidence which was to be adduced would have involved a retrial of the whole case. The point I was seeking to make on that is this, that it would have been very much more satisfactory for the appellant, and for the public, if the result of these proceedings had been that the matter could have been sent back to the jury, instead of to an administrative tribunal, for public trial and for consideration according to the ordinary forms of law.

Mr. Julius Silverman: This Clause would make no difference.

Mr. Hogg: My own view is that it would. I do not think it worth while discussing the actual drafting of this Clause. What we are discussing, and what we must make up our minds about, is whether, in principle, there ought to be a limited power of retrial or not. My conclusion is that it is desirable to have a limited power of ordering a new trial. The alleged objections seem to be theoretical and academic, and even sentimental, rather than real.
It is alleged that there is a fundamental principle in our law that a man should never stand his trial twice. That is news to me. The hon. and learned Member for Northampton (Mr. Paget) has already pointed out that it is the commonest thing in the world for two, and sometimes three trials to be held—although three is less common, but I have known it happen where a jury has disagreed. The normal thing in the last case is for the Attorney-General to enter a nolle prosequi. But it does happen that three trials have been held, and to pretend that a new innovation is taking place if two trials are held on the same indictment is flying in the face of experience. To take the famous case of Oscar Wilde—

Mr. Speaker: Is the hon. Gentleman opposing or agreeing with the Amendment?

Mr. Hogg: I was trying to make it clear—and I thought I had, at any rate, to the majority of the House—that I was agreeing with the Lords, and regretting the decision of the Attorney-General. Perhaps you, Sir, have not heard the whole of my observations. I have been very much interrupted, and I have explained that I think it right to put on record what my views are.
In the Oscar Wilde case the jury disagreed on the first criminal trial. There had already been a criminal trial in the same direction. There was finally a trial which led to conviction. My own feeling has been that the point which is put against the Lords Amendment, to the effect that a second trial is in all circumstances to be avoided, is not good enough. It is then said that the appellant may have exhausted all his financial resources in the first trial. That would be a sound argument against the re-trial if it were a sound argument against this Clause. But it is not usually considered so. There are, as a matter of fact, means by which persons who have no financial resources can get adequate means of defence; if there were not, our system of justice would not be worth very much. I cannot think that that is a very good reason. Then it is said that a man's previous convictions are read out after conviction by a jury. I regret that I cannot find anything particularly persuasive in that, either. It is not always the case that a man has any previous convictions if he is convicted on indictment. It is not, perhaps, usually the case. I do not know, but there are a certain number of first offenders.
The fear that a previous conviction may influence the mind of a subsequent jury is already dealt with fully in the Clause by the fact that the court has power to order a re-trial in another place remote from that in which the original trial was held. Nor am I prepared to say that the Court of Criminal Appeal, in considering whether or not to exercise the discretion given them by this particular Amendment, would not take that particular objection into account as one of the matters which it was proper to consider.
For all these reasons I find the arguments against the Lords Amendment unconvincing. I am aware that in finding them so I differ from high legal authority; but I also agree with other high legal


authority. This House is quite competent to come to a decision of its own, undeterred by the legal authority on the one side or the other. My conclusion—and it is one which I arrive at without doubt, though not without hesitation—is that, on balance, it would be advisable to give the court this power, and that that would not be to the disadvantage of the appellant or our liberties and traditions.

2.15 a.m.

Sir D. Maxwell Fyfe: I wish to urge, as shortly as possible, the reasons which make me agree with the thesis of the Attorney-General, and differ from my hon. Friends who have addressed the House. I disagree with them in the regret which they have expressed for being at the other end of the gun. I want to say only a few words to my hon. Friend the Member for Oxford (Mr. Hogg). During the time when he was not criticising the Court of Criminal Appeal I did feel a certain sense of relief that my geographical position in this House protected me when he was criticising something. He said there is no fundamental principle of our criminal law against somebody being tried twice. I think he will agree with me there is a fundamental principle of our criminal law against somebody being tried again after position that occurs in this case is that the man has been convicted and if my hon. Friend then says, "But that conviction was quashed by the Court of Criminal Appeal," I would answer: "The man stands acquitted and his trial has been brought to a conclusion." It is not then really relevant to the case which my hon. Friend quoted, where the trial had been abortive. That was the only matter on which my hon. Friend and the hon. and learned Member for Northampton (Mr. Paget) could rely. I suggest that that is not really a good analogy.
My hon. Friend took a further point. He said it might be that this position would help the accused person. I must say as a practical matter I find great difficulty in appreciating that. There are two cases usually quoted in favour. One is where there has been some irregularity which goes beyond what is excusable under the proviso of Section 4 of the Criminal Appeal Act. I have not the slightest sympathy with that case. If the

prosecution have made an irregularity in bringing a criminal charge, it is a very sound thing that they should pay for it by the person being acquitted. Let us fix the highest standard for the prosecution and let them take the rub if they do not come up to that standard. The second case, which I think is the one more worthy of consideration, is when the accused person has failed for some good reason to call evidence at the trial, and indicates to the other court by the procedure open to him the nature of the evidence, its relevancy and importance.
As the hon. Gentleman the Member for Nelson and Colne (Mr. S. Silverman) and I know very well, the Court of Criminal Appeal would apply the test: Might this new evidence reasonably have affected the jury? If they apply that test and let him off, then again I think it is right. I do not know why the hon. Member for Oxford quarrels with the general proposition of my hon. Friend the Member for South Belfast (Mr. Gage). He may disagree with the hon. Member's quantification and say that 20 is putting the number a little too high, but I think he will agree with the general proposition that it is better that guilty people should occasionally get off than that any innocent person should be condemned. I cannot understand anyone who has, as he obviously has, the feeling for English jurisprudence in his bones quarrelling with that proposition.
There is just one other point on this and I hope that the House will bear with a little history, because the language in which it finished is most appropriate to our discussion. The history of this provision is that when the original Criminal Appeal Bill was introduced into the House of Commons, it contained a provision for a new trial. The House of Commons considered it very carefully in the Committee stage. After this lapse of time it is not uninteresting to note who were the people—again, from all parts of the House, just as tonight—who pressed that it should not have the right to grant a new trial. There was Sir Edward Carson, whose experience of the criminal law will, I think, be admitted by everyone; Mr. Akers Douglas, who had been Home Secretary before in the Conservative Government; Lord Robert Cecil, as he was then, practising at the Bar; and, I am told, though it was not quoted in the Report, Sir John Lawson Walton.
The House of Commons threw out the provision. It then went to the House of Lords, and in dealing with it Lord Loreburn, after referring to the history which I have mentioned and referring to some of the personages whom I have named, went on to say:
I think there is a great deal to be said for the action of the Commons, because it approaches the confines of torture to put a man on trial twice for the same offence.
I do not think that anyone in this House will contradict me when I say that it is not often that a Lord Chancellor in another place uses language as strong as that on a matter within his own purview. I know that at this hour of the morning I ought not to detain the House; but I could not give a silent vote on this matter. I know as well as anyone who has had experience, of the learned judges who take a different view. I differ from them with real diffidence. But on these matters I think it is essential for us to try to form a view, and one which belongs to the real foundation of English justice; which is not a matter, as my hon. Friend has light-heartedly suggested, of national sporting characteristics, but of the deep sense of freedom which so widely exists, that the advantage should be given to the prisoner and nothing done to prejudice him or put him into a position where anyone might say that unfairness must result from a second trial.

Mr. Hale: I am sorry to have to discuss a very important matter like this at this hour of the morning. I have remained in this House since 2 o'clock yesterday for the purpose of discussing this Clause and the important matters which arise upon it. This is a proposal for a fundamental alteration of the judicial system, and of the primary principles which have prevailed for centuries. I am definitely opposed to this proposal. I agree with a number of the things said by the hon. Member for Oxford (Mr. Hogg), particularly about the Court of Criminal Appeal I agree with his diagnosis, even if it does not appear to me that the Court is frustrated for the reason which he suggested.
This is a matter which concerns primarily the appellant. This House is too often apt to discuss our criminal jurisprudence as if it were an easy matter to draw a line, on the one side of which were the sheep, and on the other side the goats; to say that certain people were

guilty and others were not, and so to differentiate between the two. It is well that we should acknowledge that we have a certain responsibility in this matter and that we should realise that, day by day, offences of the greatest possible complexity are being committed, and it is a most difficult task for the most skilled investigator to decide whether a man is guilty or not. The present law contemplates an appeal to the Court of Criminal Appeal by the defendant, and one knows that one opinion may differ very considerably from another on the issue.
I had to sit in the Court of Criminal Appeal a few weeks ago, and I think the facts are worth recording to the House; I can give them in a few seconds. The accused was a man of irreproachable character; he had served in the Army with an unblemished record, and he married. Within a week he found that his wife had both gonorrhoea and syphilis; he forgave her, and suggested that she should undergo treatment. This she did, but she soon returned to her old habits, and indulged in some form of rural prostitution. This man, her husband forgave her a second time, and tried to get her to mend her ways, but she was seen to leave a public house with a soldier and to go down some dark lane, after which she was seen to accept money.
The husband sought legal advice, but was told that gonorrhoea and syphilis contracted before marriage did not constitute grounds for divorce. The husband reasoned with her, and a third time he forgave her, but she was again seen to receive money. It was then that he struck her—the one occasion on which he did so. He had in his pocket a clasp knife, and he struck the unfortunate woman with it causing what could be classed as "a dangerous wound." In this case, the woman recovered after two or three weeks, and was, in fact, never in any danger. But, of course, it was ruled to be a wound with intent to endanger life. I do not know what hon. Members would have thought adequate punishment for this tragic affair. I should have given the man one day's imprisonment, or bound him over. He was given five years' sentence, and he is now serving it. The Court of Criminal Appeal listened to the case with considerable attention—more than it gave to some other cases, but the Lord Chief Justice and other


judges gave a decision, and that unfortunate man is now serving his five years' sentence.
There is a wide disparity of views, and the same thing applies in the case of a conviction and sentence where there may be an increase of sentence. Under the old practice in the Court of Appeal, before a sentence was increased upon appeal, a warning was always given to counsel for the appellant or to the appellant himself that there was the danger of an increase in sentence. That is now withdrawn and some harsh sentences—some really savage increases—have been made without any warning to the accused.
There is another aspect to which I would refer briefly. There are no shorthand writers available today; there is a great shortage of shorthand writers and it is months after conviction before the evidence is available and if, as often occurs, there is a change of advisor, there are no means of ascertaining the facts at all. The practice of the courts is to date sentence from the hearing of the appeal although there is a lapse between the time of the sentence and the hearing of the appeal, but the period is so long that, nominally a period of six weeks is added to the sentence.
2.30 a.m.
I disagree with the hon. and learned Member that there are ample facilities for defence without money. There are people I admit who do give their aid generously, but I do not agree that there are ample or adequate facilities. We are always confronted with this position. Instead of having a right of appeal we are faced with a whole series of provisions, expenses, doubts and fears. Then there is the risk of having the sentence increased on appeal to the Court of Criminal Appeal, and, of course, the Court of Criminal Appeal can still say that although there were irregularities in the trial, there were mistakes in summing up, they have come to the conclusion that those do not constitute a fundamental matter, or ground for saying that there should have been a different verdict. Indeed, they have disregarded them quite frequently and quite properly.
We are now asked to add to this power, a power for the Court to say that there was an irregularity, that there was a fundamental error—because that is what

it comes to in this Clause—but they feel that this chap might have been guilty after all, and he ought to be put to the expense of a new trial, which presumably would take place with the man still in custody.—[AN HON. MEMBER: "He can apply for bail."] The hon. Member knows that bail is virtually never granted between the period of sentence and appeal. I can think of only two cases in the past few years, and one was a case in which there were very special circumstances. I did take an exceptional case for advice to counsel but his advice was that it was quite hopeless to apply and was never granted without very special reasons put forward. If we are to add to the fear of an increased sentence, the fear and expense, and detention of a new trial we are virtually going to wipe out the right of appeal altogether. Already I think the Court of Criminal Appeal have too much power in this matter, and I ask the House to say by a substantial majority that they disagree with the Lords Amendment and refuse to dive this new power.

CLAUSE 34.—(Amendment of Criminal Appeal Act, 1907.)

Lords Amendment: In page 38, line 1, leave out Subsection (1) and insert:

"(1) Where an appellant within the meaning of the Criminal Appeal Act, 1907, is admitted to bail under that Act, the time during which he is at large after being so admitted shall be disregarded in computing the terms of any sentence to which he is for the time being subject.
(2) Subject as hereinafter provided, six weeks of the time during which any such appellant, when in custody, is specially treated as such in pursuance of rules made under Section forty-eight of this Act, or the whole of that time if it is less than six weeks, shall be disregarded in computing the term of any such sentence as aforesaid:

Provided that—

(a) the foregoing provisions of this Subsection shall not apply where leave to appeal is granted under the Criminal Appeal Act, 1907, or any such certificate as is mentioned in paragraph (b) of Section three of that Act has been given for the purposes of the appeal; and
(b) in any other case, the Court of Criminal Appeal may direct that no part of the said time, or such part thereof as the court thinks fit (whether shorter or longer than six weeks) shall be disregarded as aforesaid.

(3) Subject to the foregoing provisions of this Section, the term of any sentence passed by the Court of Criminal Appeal under the


Criminal Appeal Act, 1907, in substitution for a sentence passed on the appellant in the proceedings from which the appeal is brought shall, unless the court otherwise directs, begin to run from the time when it would have begun to run if passed in those proceedings, and references in this Section to any sentence to which an appellant is for the time being subject shall be construed accordingly.
(4) In relation to a person sentenced to Borstal training, any reference in this Section to the term of that sentence shall be construed as a reference to the periods during which, under the Second Schedule to this Act, he may be detained in a Borstal institution; and nothing in this Section shall be construed as affecting any period during which a person so sentenced is liable to supervision under the said Second Schedule.
(5) The Court of Criminal Appeal may, when they dismiss an appeal or application for leave to appeal order the appellant or applicant as the case may be to pay the whole or any part of the costs of the appeal or application, including the cost of any transcript of the shorthand notes of the proceedings at the trial made in accordance with a direction given by the registrar under Section sixteen of the Criminal Appeal Act, 1907; and any order under this Subsection may be enforced by the person to whom the costs are ordered to be paid in the same manner as an order for the payment of costs made by the High Court in civil proceedings.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
I think that the Amendments in line 11 and line 15 might conveniently be taken with this one. During the Committee stage in this House an Amendment was moved by the hon. Member for West Leicester (Mr. Janner) to limit to six weeks the time which the appellant to the Court of Criminal Appeal might lose by appealing, and the Attorney-General undertook on behalf of the Government to consider the matter. The effect of the Clause is to provide this limit of time subject to the discretion of the court to direct in a particular case either that a longer or shorter period may be lost. The effect of Proviso (a) is that where leave to appeal is granted, or the appellant appeals on the certificate of the trial judge, he will not lose any time. In Subsection (5) there is provision enabling the Court of Criminal Appeal to order an unsuccessful appellant to pay costs, including the cost of transcript. This was necessary because transcripts run to

hundreds of pages, and had to be made to enable the court to deal with frivolous appeals against convictions by certain persons. The Amendments to line 11 and line 15 are merely drafting.

Sir D. Maxwell-Fyfe: I beg to move, "That further consideration of the Lords Amendments be now adjourned."
I do this so that the right hon. Gentleman might let us know what his intentions are. I do not think he can complain of anyone wasting time tonight. The House obviously wanted to discuss the first question, and since then we have all kept to the points. It is getting rather late, but I think everyone would welcome an expression from the right hon. Gentleman of what he intends to do. I do not think it would take very long on another occasion and it is rather late to consider this rather complicated matter tonight.

Mr. Ede: I had hoped that in the last discussion we had really disposed of all controversial matters that remained, and I understood that that was the general view. That being the case, I would have hoped that the House would agree that we should continue and deal with the remainder of these Amendments. I hope the House will do that because in the matter of these amendments we have not merely to consider our own convenience, but the convenience of another place, and if we adjourned this matter until next week, we should be seriously inconveniencing another place in the consideration they will have to give to the Amendments that we have made. I do not think we should be putting an undue strain on the House by continuing now. If it appears at a later stage that we get involved in some fresh controversy, I would then consider the appropriate course to take.

Sir D. Maxwell-Fyfe: I appreciate the point about the difficulty in another place at this stage of the Session, and I am quite prepared to withdraw my Motion on the understanding that the right hon. Gentleman has mentioned—in case we strike some difficulty later on. I therefore beg to ask leave to withdraw my Motion.

Motion, by leave, withdrawn.

CLAUSE 36.—(Taking of fingerprints by order of justices.)

Lords Amendment: In page 39, line 23, leave out Subsection (4) and insert:
(4) Where the fingerprints of any person have been taken in pursuance of an order made under this section, then if that person is acquitted or discharged under section twenty-five of the Indictable Offences Act, 1848, or if the information against him is dismissed, the fingerprints and all copies and records thereof shall be destroyed.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
The question of fingerprints when a person is subsequently acquitted or discharged without fingerprints being taken is a matter to which very considerable attention has been given. This re-drafting of the subsection I think carried out what was the general desire on both sides of the House.

CLAUSE 38.—(Order of speeches in courts of summary jurisdiction.)

Lords Amendment: In page 41, line 7, at beginning, insert: "Notwithstanding anything in Section two of the Criminal Evidence Act, 1898,"

Read a Second time.

Mr. Ede: I beg to move, as an Amendment to the Lords Amendment, at end to add:
or in section fourteen of the Summary Jurisdiction Act, 1848.
This is a drafting Amendment and it is thought desirable to make it clear that the provision of Section 14 of the Summary Jurisdiction Act, 1848, concerns the procedure of Subsection (2) of the Clause.

Amendment to the Lords Amendment agreed to.

CLAUSE 40.—(Payment of costs of defence on acquittal, etc.)

Lords Amendment: In page 42, line 18, at end insert:
(5) Where, in pursuance of a direction of the Court of Criminal Appeal under section (Power of Court of Criminal Appeal to order new trials) of this Act any person who has appealed to that court is re-tried before a court of assize or quarter sessions, and is acquitted on the re-trial, the sums which may be directed by the court of assize or quarter sessions to be paid out of local funds under this section shall include—


(a) any sums which the Court of Criminal Appeal might have directed to be so paid on the appeal to that court and
(b) (if an appeal was brought to the House of Lords from the decision of the Court of Criminal Appeal) any sums which the House of Lords might, or might if that appeal had been determined in his favour, have directed to be so paid on that appeal."

Mr. Younger: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
This is consequential on the Amendment to which we disagreed a few minutes ago.

Lords Amendment: In line 37, at end insert:
and references in any enactment (including any enactment in this Act) to costs payable under the Costs in Criminal Cases Act, 1908, shall be construed as including references to costs payable by virtue of the provisions of this section.

Read a Second time.

Mr. Younger: I beg to move, as an Amendment to the Lords Amendment, to leave out "(including any enactment in this Act)."
The Amendment is necessary consequent upon a previous Amendment. The words:
including any enactment in this Act
are not necessary because we have removed the phrase to which that refers. Therefore, the phrase has no utility. I do not think that it does any harm but it is mere surplusage.

Amendment to the Lords Amendment agreed to.

CLAUSE 44.—(Remand centres, detention centres and Borstal institutions.)

Lords Amendment: In page 44, line 9, leave out from "provide" to end of line 12 and insert:

"(a) remand centres, that is to say places for the detention of persons not less than fourteen but under twenty-one years of age who are remanded or committed in custody for trial or sentence:
(b) detention centres, that is to say places in which persons not less than fourteen but under twenty-one years of age who are ordered to be detained in such centres under this Act may be kept for short periods under discipline suitable to persons of their age and description; and


(c) Borstal institutions, that is to say places in which offenders not less than sixteen but under twenty-one years of age may be detained and given such training and instruction as will conduce to their reformation and the prevention of crime."

2.45 a.m.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment and the next one to line 12 provide definitions of remand centres, detention centres, Borstal institutions and attendance centres.

CLAUSE 48.—(Rules for the management of prisons, remand centres, detention centres and Borstal institutions.)

Lords Amendment: In page 46, line 42, after "treatment" insert "employment."

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Amendment is inserted here because in another place it was thought that employment was sufficiently important to have special mention.

Lords Amendment: In page 49, line 8, to insert new Clause "H" (Amendment of Prison Act, 1865, as to introduction of prohibited articles.)
For the purposes of sections thirty-seven to thirty-nine of the Prison Act, 1865 (which relate to the conveyance of prohibited articles into or out of prisons) a person shall be deemed to convey or introduce an article into a prison if he conveys it to a prisoner outside the prison, or deposits it at any place outside the prison with intent that it shall come into the possession of a prisoner.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This Clause was inserted by the Government in order to apply the principle of Section 37 and 39 of the Prison Act, 1865, which makes it an offence to introduce tobacco and other prohibited articles into prisons, to conditions which were not contemplated when that Act was passed. Cases have occurred in which persons have left tobacco for a prisoner at a prearranged spot where the prisoners are

working. Such an act is not an offence under the existing law, and in view of the extended use of prison labour outside prisons, it is necessary to make it an offence.

CLAUSE 58.—(Removal to Broadmoor institutions of certain persons serving life sentences.)

Lords Amendment: In page 53, line 36, leave out Clause 58.

Mr. Ede: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
Clause 58, which provides for the removal to Broadmoor institutions of certain persons serving life sentences is consequential upon Clause 1, which provided for sentences of penal servitude for life in all cases of murder. It is necessary to retain this Clause in order to deal with some of the more limited class of cases in which, under the amended Clause 1, the sentence for murder will be penal servitude for life. The cases in question are those where, although the offender is not certifiably insane, there is an element of mental instability or a particular psychological kink which would make it unsafe to contemplate the prisoner's release for an exceedingly long time, perhaps as long as his natural life; and the Clause will allow of such persons being confined in the more appropriate conditions of Broadmoor instead of in prison.

CLAUSE 67.—(Education of persons detained.)

CLAUSE 74.—(Expenses and grants payable out of moneys provided by Parliament.)

Mr. Ede: I beg to move, as a consequential Amendment, in page 63, line 38, to leave out Subsection (7).
This Amendment is consequential on the omission of Clause 67. This subsection authorises any increased expenditure under the Education Act resulting from the provisions of Clause 67.

Amendment agreed to.

CLAUSE 78.—(Application to Scotland.)

Lords Amendment: In page 66, to leave out line 15.

Mr. Ede: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
The re-insertion of the reference to Section 1 is consequential on the restoration of Clause (1) in an amended form to the Bill.

Lords Amendment: In page 66, line 35, at end insert new Clause "I" (Application to Northern Ireland).
The following provisions of this Act shall extend to Northern Ireland, that is to say—

section (Abolition of privilege of peerage in criminal proceedings);
section seventy;
Part III of the Tenth Schedule and subsection (4) of section seventy-nine so far as it relates to the enactments specified in the said Part III;

but except as aforesaid this Act shall not extend to Northern Ireland.

Mr. Ede: I beg to move, "That this House doth agree with the Lords in the said Amendment."
This applies the new Clause we added with regard to the trial of Peers to Northern Ireland.

NINTH SCHEDULE.—(Consequential and Minor Amendments.)

Lords Amendment: In page 86, line 25, column 2, at beginning insert:
In section twelve, in subsection (5) for the second and third paragraphs there should be substituted the following paragraphs—
'If the accused in answer to the question states that he wishes to give evidence or to call witnesses, or both to give evidence and to call witnesses, the justices shall proceed to take the evidence of the accused if he wishes to give evidence himself, and of any witnesses called by him who know anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.
Where the accused is represented by counsel or a solicitor, his counsel or solicitor shall be heard on his behalf, either before or after the said evidence is taken, at his discretion, and may, if the accused gives evidence himself and calls witnesses, be heard on his behalf with the leave of the justices both before and after the evidence is taken:
Provided that where counsel or a solicitor is so heard both before and after the evidence is taken, counsel or the solicitor

for the prosecution shall be entitled to be heard in reply.'.

Mr. Younger: I beg to move, "That this House doth agree with the Lords in the said Amendment."
The Amendment makes the necessary amendment of Section 12 of the Criminal Justice Act, 1925, which deals with procedure before examining justices; to apply the principle of Clause 38 (2) relating to the order of speeches, with modifications necessary owing to the differences in procedure before examining justices from the procedure on summary trial.

TENTH SCHEDULE.—(Enactments Repealed.)

Lords Amendment: In page 94, leave out lines 51 and 52.

Mr. Ede: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
The effect of the Amendment is to delete the repeal of the Garrotters Act, 1863. The Motion to disagree with the Lords is consequential on the earlier Motions to disagree with the Lords in the Amendments in page 3, and to restore to its existing form Clause 3 of the Bill, which abolishes whipping.

Lords Amendment: In page 96, leave out lines 41 to 44.

Mr. Ede: I beg to move, "That this House doth disagree with the Lords in the said Amendment."
This Motion is consequential on earlier Motions to disagree with the Lords on Amendments in page 3.

TITLE.

Postponed Lords Amendment: In line 1, to leave out from "Act" to second "to," disagreed to.

Amendment made to the Title in lieu of the Lords Amendment last disagreed to, by leaving out "suspend the death," and inserting "amend the law relating to the" instead thereof.—[Mr. Ede.]

Remaining Lords Amendments agreed to. (Several with Special Entries.)

Committee appointed to draw up reasons to be assigned to the Lords for disagreeing to certain of their Amendments to the Bill:

Mr. Ede, Mr. Hector Hughes, Mr. Manningham-Buller, Sir David Maxwell Fyfe, and Mr. Sydney Silverman. Three to be the Quorum.—[Mr. Ede.]

To withdraw immediately.

Reasons for disagreeing to certain of the Lords Amendments reported, and agreed to:

To be communicated to the Lords.

Orders of the Day — EXPORT TRADE CONTROLS

Motion made, and Question proposed, "That this House do now adjourn."—[Mr. Snow.]

3.2 a.m.

Mr. Geoffrey Cooper: I apologise for detaining the House at this very late hour. Due to the difficulty in obtaining an Adjournment, and to the fact that I am trying to present certain difficulties which have been described to me by a number of people in industry, I feel I have a certain obligation to put the case even though the hour is advanced. We notice that Ministers continually give exhortations to the works in industry to increase efficiency and production in order to fill the export gap. I have taken this subject of steel controls and the export trade because I believe that though the steel workers are doing their best to raise the target to the utmost capacity of the industry, the way in which we are converting that steel into products for export is not being carried out in the best way to ensure the steel being used to the best possible extent in earning foreign currency.
I believe that the ever-increasing controls—and we find an increasing number of officials in many Departments—are themselves tending to cause delays rather than to smooth out the difficulties which industry is facing. They are, in fact, a new burden on the backs of the workers. It is the Government's policy to leave 80 per cent. of industry in private hands, and I believe that the Government should realise their responsibility to provide the facilities for this 80 per cent. of industry

to carry on its business properly. I think the nationalised industries are getting Government help to the fullest possible extent. But from the information which comes to me from many industrialists, I am led to believe that the frustrations of industry are becoming well-nigh intolerable. The frustrations which the managements are feeling are spreading down to the workers who are finding hold-ups in industry because of controls which seem to have got completely out of control.
I am not alone in my opinion, because in this House recently hon. Members have brought forward cases similar to those which I shall relate. Recently we had a Debate, to which my right hon. Friend replied, dealing with the wiredrawing industry, and with the shortage of steel which it was experiencing. Then there was the question, brought forward by the hon. Member for Ipswich (Mr. Stokes), of the problems which industry was meeting in regard to the prices being charged for imports, and the prices being charged for exports. He indicated that the gap between the two was widening to an alarming degree. It is, however, no good trying to get good prices for exports if products are not being made available for export in the largest quantities which we can possibly supply from our resources. I raised on the Adjournment Debate on 22nd January, the general question of the way the Civil Service was operating the controls, and the adverse effect upon industry. This time, I want to give one or two specific examples: I have had to select these examples carefully, and I hope the Minister will not think that they are just isolated cases. I believe they are typical of the sort of problems which industrialists, by and large, are facing at present.
Before I give the examples, I would like to mention one point. It is that when my constituents, who are industrialists or exporting merchants, come to me with information, as they do from time to time, they ask me not to mention their names or products. They say that if they were to kick up a fuss they would stand to be victimised by officials in the Departments. I believe that the Minister uses his influence as far as possible to aid industry in every way, but when decisions are taken behind closed doors, and the firms affected cannot hear the arguments used in arriving at those decisions, they are naturally inclined to be suspicious of the decisions,


particularly when they react against them. They feel there is a great possibility, if they cause trouble, that officials in the Departments may not, in future, be as helpful as they might be. They fear that victimisation may occur as a result of their having raised some matter through an hon. Member of this House. This is a very real point, and I am not, I think, exaggerating it. I hope the Minister will endeavour to dissipate this fear which exists in the minds of industrialists, if he possibly can, in his reply to the Debate.
As I see it, the Ministry of Supply's system of allocating steel has broken down. I know that when the present Minister took office he admitted that the system of allocations had broken down. I think that he has tried to remedy the matter; but the indications are that he has not succeeded in doing so. The Minister's endeavour to operate the controls entirely, or almost entirely, by officials, will fail, however hard he tries, because decisions and allocations are too frequently being made by officials who are not in close enough touch with industry; and who, in any case, have not the industrial background to enable them to make their decisions in the most intelligent way.
The first example I would like to quote is that of a forge in the north of England. It was represented to me that in one period alone they had some 1,500 tons of steel short of the allocation which had been given to them. I raised this matter in a Question which I had answered by the Minister on 31st May, when my right hon. Friend's reply was that he was satisfied that the system of allocating steel was fair and efficient. He added, however, that there must inevitably be a number of cases in which supply falls short of demand because of the limited amount of steel available. That, of course, I can understand, but what I cannot understand is that the supply falls short of the allocation, because if there is a consistent failure in this respect the system of making the allocations must be at fault. The firm to which I have referred, required 35 tons of a special type of steel; not a very large amount. It was needed to make agricultural implements, and the firm obtained from their colleagues in the industry information to the effect that the steel was available, although they were

unable to get the actual steel delivered to them against their allocation. This was despite the fact that they had the Ministry of Supply allocation to quote as authority for obtaining the steel. As a result of their not getting this small quantity, it was necessary for the Ministry to sanction the placing of an order for importing a number of these agricultural implements at no less than three times the price for which they could have been made in this country. This is the sort of thing which widens, rather than narrows, the import-export gap.
A second example refers to another firm, again in the north of England. They specialise in making certain parts for prefabricated houses, and they specialise in making a certain part for a firm who are supplying the entire quantity of a certain type of prefabricated house. They obtained an order for a quantity of these houses, and, automatically, the other firm would have received orders for their specialised part. The firm designing the house then said, "We cannot place this order because we have been told that the Ministry of Supply have allocated a quantity of steel imported from Belgium to another firm. This firm will do half the order, and you will have to do the other half." Then later they were told that the whole order would have to go to the firm using Belgium steel. When the parts were made of the steel which came from Belgium it was found that they were unsuitable. The material was wasted, and the work which had been put into the steel was also wasted. These are the sort of difficulties which, as I see the matter, are actually introduced into the industry. It is, presumably, that officials at the Ministry are not sufficiently knowledgeable on their job, otherwise this kind of thing could be prevented.
There is a further source of difficulty which industrialists have brought to my notice, and it occurs because of the way in which the Ministry of Supply are supposedly co-operating with the Board of Trade. If a firm wishes to import a certain product they go to the Board of Trade for an import licence. If it is a technical component or a machine then the Board of Trade ask for advice from the Ministry of Supply's Production Panel to see whether that same product is or could be made in this country. That is a sensible procedure, but it is difficult for


the manufacturer, when he cannot get a quick decision, to find out where the blame lies for the delay. The Board of Trade blames the Ministry of Supply, and the Ministry of Supply tends to blame the Board of Trade, and in between the two the poor industrialist gets rather a raw deal.
In some cases the allocation of import licences can be made within two weeks, but in some cases it is as much as six weeks, and I have two cases where the period has extended, off and on, over six months. There was a firm which wished to import a design of scales from Switzerland. There was no patent attached, but it was a design which would appear to have a good demand not only in this country, but chiefly in the Dominions and certain hard currency areas, to which this firm who wished to import these scales was already sending a considerable quantity of its products. All they wished to do was to obtain a sample to see if they could cost up the particular design, to see if it were worth proceeding with, and then obtain a sample quantity of 200 so as to try out the market not only in this country but abroad, before going into production.
Yet a decision was given against them, as I see it, on inadequate information or inadequate knowledge, which was in the hands of the official. Serious decisions of this type, which can affect the import and export trade of this country, need to be given far wider decisions when just one official can give advice that a certain import be stopped, and that advice, coming to the Minister, seems to weigh against all other considerations or representations made by industrialists or Members of this House.
There was another case of a piece of equipment which was designed in the United States. It seemed to have good market possibilities if made in this country and then exported to hard currency areas, and the firm obtained a tentative agreement actually to market this piece of equipment overseas. In this case it was necessary to obtain a certain piece of machinery from the United States to enable the machine to be made quickly. The total cost involved, both in royalties and for the special part, was 125 dollars on each, and each complete machine would fetch, on selling, £300 or £400. This comparatively small allocation of

dollars was the cause of the project being turned down The Ministry of Supply, in a letter, stated, "At this stage of affairs we would be unable to recommend the import of components from America." It is also stated in the letter that comparable machinery was available in this country. The official who made that statement really could not have known the facts, because if it were comparable it would be infringing an American patent. If not, it would not be suitable for this particular job, and it would not do this job as efficiently.
Here, once again, we come up against the real fears and difficulties of industrialists when they put forward schemes. They go to tremendous trouble. In this case the individual who got a special agreement to manufacture these particular machines travelled in America and spent the 3,000 dollars which was allowed him by the Treasury, and then the project was turned down. This is the sort of thing that these industrialists are up against. They go to tremendous trouble: they know from past technical and commercial experience the possibilities of certain types of equipment. In the end, that product was turned down by an individual who, seemingly, was acting in that most arbituary way and on the information before him. These arbituary decisions seem to be incapable of being altered by the representations of the manufacturers.
I want to give my hon. Friend an opportunity of replying to one or two of the cases I have given, and there are many other cases I could quote. I will quote one more, which is of special significance. It is that of a firm that makes special pieces of steel equipment for the Post Office and for export. They had an order which they received from a dog-racing track and they turned it down because, naturally, they wanted to fulfil Government orders or to export, and they felt that this order was a matter of no real importance. Within a few weeks, the dog racing organisation was able to obtain a priority order from the Ministry of Supply. On the other hand, they were not able to get the help of the Ministry of Supply in obtaining machinery with which they could increase their capacity; they could get no help from the Ministry in extending their factory and getting the Ministry's blessing so that they could obtain the necessary materials with which this extension could be built. These


further instances are, I hope, sufficient to show that industrialists at large are up against real difficulties and that in many cases they are not getting all the help from the Departments that they should get. What is being done is going right against all the endeavours which these firms are making to expand their export trade.

3.23 a.m.

The Joint Parliamentary Secretary to the Ministry of Supply (Mr. Jack Jones): I regret that the hon. Member for West Middlesbrough (Mr. Cooper) should have taken so much time and asked so many questions and left me so little time for my answers. We have had a Debate on the question of whether people are guilty or not guilty of offences and to all the offences with which the Ministry has been charged I plead not guilty. I do, however, plead guilty to exhorting the workers to work, and I am happy to know, and I am sure the House and the country are happy to know, that there is today, under a Socialist Government, a greater demand than ever by producers for materials which they wish to work upon.
It is remarkable that the hon. Member seems to have a constituency extending all over Britain. One would have expected that these complaints would come to me through the Member responsible for the constituency in which the firms are situated. I do not complain of that, but it is a remarkable coincidence that the complaints have come from all quarters. I have some knowledge of industry, especially the steel industry, and I know that it is a physical impossibility to meet all the demands for steel out of present production. It is a happy thought that the men I have the privilege of representing in this House are, at this moment, trying to beat last month's record steel production, which was an all-time record for Britain, but, despite that, it is impossible to meet the demands of all industrialists.
The question of scales has been mentioned. It does not follow that because Switzerland would wish to send to this country scales that look very nice—and that was the main attribute of this particular set of scales—we should give sanction for them to be brought here. Our mission is to see that the production of steel and anything else in this country

with which we are concerned shall be used by our own people in the interests of our economic recovery. We are against any article coming into this country which we can produce ourselves. There are many reasons for this: We want to keep our own people employed. We want to restrict, as far as possible, the waste of even one dollar; goodness knows, they are scarce enough.
I know the forge in the north of England. I know it as well as I know the back of my own hand. I was born in the town where it is situated. High silicon steel of the type required there is most difficult to make. It is not the fault of the Ministry of Supply that there was sufficient production further north in the Middlesbrough area that this forge might have had; it is a matter which private enterprise has within its own control. There is no evidence that we are preventing that type of steel from reaching that forge. I know some of the difficulties of private enterprise. I know something of the idea of private enterprise of creating steel of a higher conversion value rather than making other steel that may be in the best interests of the nation. Private enterprise is not the paragon of all the virtues, as the hon. Member for Middlesbrough would suggest. The solution to many of the problems is in their own hands. I have had information and, after most careful inquiries, I am satisfied, as a practical man—not as a theorist, with no background—that some of the suppliers of some of our most urgent needs are not doing all that they might. I do not accept the allegation that we are responsible.
The supply of poles for a dog-racing track has been mentioned. If my hon. Friend—I consider him my hon. Friend—would look carefully into this problem he would find that the allocation of poles to a dog-racing track is a question for the Ministry of Works. It does not come within our purview. If poles were used wrongly for the lighting of a dog-track then someone in that area, having got steel for another purpose, broke the law. I am inclined to suggest that when this information is passed to the appropriate Ministry there will be an investigation, involving the persons concerned. Other allegations have been made. I wish at once to refute the suggestion that the officials in my Ministry are not up to their jobs. I have had the opportunity of


meeting these people hour by hour and day by day, and of assessing their real value. I can assure my hon. Friend that I have been more than pleasantly surprised at the technical and industrial knowledge possessed by the men concerned with these problems. They are selected and used as specialists in the Departments, dealing with the various sections of the industry for which we are responsible. It is only fair that this should be said here if the allegations which are made here against civil servants were made outside they would have an opportunity of defending themselves. The suggestions which have been made are absolutely without foundation.
Certain industrialists have been mentioned. I have had an opportunity of finding out what their attitude has been to various problems. I have had the opportunity of meeting them on the spot. To suggest that we do our business behind closed doors, and that the industrialist is afraid of victimisation, is just sheer nonsense. Any industrialist can come to the Ministry of Supply. The doors are ever open, at all sorts of weird hours, for industrialists to be received by courteous people who are prepared to help. I made a statement at this Box last week which I should like to repeat—that our job is to help industry and to try to prevent the bottlenecks to which my hon. Friend has referred. It is physically impossible to give

everyone in the country all they need. We try to allocate our materials in the best interests of the nation with the "let's get rich" persons last. There is a good bit of that going on. We try to prevent those who would wish to use the present steel stringency for their own gain from getting large profits.
If instead of taking notice of these industrialists, and writing on their behalf—which appears to be the case—my hon. Friend would bring them along to the Ministry we could consider our differences across the table. I can give this personal guarantee, that I will do all in my power, as I am sure will my right hon. Friend, to iron out their difficulties. Last week I said we want to be looked upon as the friends of industry. We are most anxious to see that the allocations of steel are placed where they will be used in the best national interest. I regret that it is not possible to give to all all that they need. There is no Member of this House, no civil servant and no official, who has got all he needs. I can give this guarantee, however, that having regard to the international position we will do our best to satisfy the people who appear to send complaints ad lib to my hon. Friend, and remove their complaints as far as is possible.

Adjourned accordingly at Twenty-seven Minutes to Four o'Clock a.m.